Monday, September 17, 2007

Gallows Humor....9/26


Man came in said, "All rise." We all stood up, and Obie stood up with the twenty seven eight-by-ten colour glossy pictures, and the judge walked in sat down with a seeing eye dog, and he sat down, we sat down. Obie looked at the seeing eye dog, and then at the twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one, and looked at the seeing eye dog. And then at twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one and began to cry,'cause Obie came to the realization that it was a typical case of American blind justice, and there wasn't nothing he could do about it, and the judge wasn't going to look at the twenty seven eight-by-ten colour glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us. ...from Arlo Guthrie's Alice's Restaurant

A man falls off the Empire State Building, and half-way to the ground he yells to someone watching, "So far, so good...."

The initial ruling (on disclosure) is apparently against me. Which means the appellate process. While this isn't the actual lawsuit, it is most critical. It's hard to believe the standards for disclosure were met under Cahill.


As Cahill's "Summary Judgment" Standard contends:


It requires that a plaintiff, suing for defamation, must satisfy a summary judgment standard in order to unmask the identity of the anonymous speaker. In this case, Cahill was a public figure, and to prevail in a defamation lawsuit, he had to prove that (1) Doe made a defamatory statement (damaging to Cahill’s reputation); (2) the statement was concerning Cahill; (3) the statement was published (disseminated to others); (4) others would understand the statement to be defamatory; (5) the statement was false; and (6) Doe made the statement with actual malice (he either knew it was false or acted in reckless disregard of the truth).

The Court concluded that Cahill must satisfy the summary judgment standard relating to most of these elements. That means that Cahill must show that there’s a genuine issue of material fact about these issues. In other words, he must show enough evidence to justify why he should proceed to a jury on these issues.

...the easier one can expose the identities of John Does, the more likely it will "chill the use of the Internet as a medium for free-ranging debate and experimentation with unpopular or novel ideas".

The biggest issue is #5: Was it false?


...that element of a summary-judgment-like test still ought to be relaxed, because evidence of "actual malice" could likely only be obtained through discovery, whereas a plaintiff could make a threshold showing of falsity and defamation from his own resources.

Example: Items 24&25 in the suit deal with specific accusations of falsehood by John Doe#1.

So, to prove #24, the hospital would be required to provide logs of call personnel, a list of the types of studies done by the call personnel, and statements from the call personnel and the staff that called in the tech. And a copies of their certifications. All of which they should have on hand.


Up-coding verification requires the patient records, and the submitted billings, but it was indicated in the blog that it was 'suspected', not as an absolute. Didn't one of the supposed Essent resonsive comments mention a Medicare audit? With a specific settlement figure? Maybe they were suspected....


As for demonstrating #25, the hospital would have to provide to the court the same information they provide to the state and CMS. Not a terribly demanding task.


Many of the quotes that are attributed to me in the lawsuit are not mine. A careful study of the context they were clipped from will plainly demonstrate that fact. In many cases, I specifically mention that they are quotations from comments, either before or after, in others I used italics to indicate where my comments started.



The gain from 'unmasking' me towards identifying the commenters is negligible. The thought that an anonymous blogger is going to know who an anonymous commenter is tends to strain the fabric of the argument. The only security one has in this is that which is generated by the anonymity of both parties. Additionally, comments are deleted automatically from the queue as they are published.


The only thing this might do is silence an open criticism of Essent's method of doing business.

12 comments:

Anonymous said...

Where the bloody hell are the ACLU??? This is outrageous.

Anonymous said...

They are monitoring Imus' return...

Anonymous said...

The ACLU isn't interested in something as mundane as free speech. They are more interested in cases that attract national and international attention.

They can't be bothered with some one horse town like Paris, TX, trying to save their city and the health care of their citizens from the likes of Essent.

They would rather spend their resources on defending the likes of some scumbag that takes sport in watching dogs kill one another and to hell with a person who really has the best interest of his community at heart.

We need to start our own legal defense fund. Where do I donate and send my meeger paycheck to? Frank needs our help!

John Doe 11 said...

Probably to the lawyer. Frank's going to need some high power representation

Anonymous said...

Grrrrr! This is what the ACLU was supposed to be for! Protecting our Constitutional Rights!!! I hope to hell SuddenLink and its lawyer are not going to cave to this kangaroo kourt!!!

Anonymous said...

HIPAA is NOT an action that can be heard in state court. McDowell is a one-armed IDIOT.

Don said...

fac_p

Keep it up. Do you have a legal defense fund set up? Most bloggers are on your side on this.

"Prove it's false, and then the ISP can tell you who I am. If I'm right, then you have no right to know who I am."

Seems pretty simple to me.

Anonymous said...

Why have you stopped posting, Frank? Are you under an order to stop? Just wondering.

fac_p said...

Actually, most of my posts are reactions to what readers submit. Comments have dried up (hint, hint)and everyone is waiting for the next shoe to drop.

I've had several request for information from other blogs, and everyone is waiting to see if the judge's ruling will stand.

Anonymous said...

Franklin:
You didn't post my comment RE your correcting my typos from the other day.......
Also, I was thinking has someone on this site already quoted Chairman Mao's comment that it is "always darkest just before it is completely dark"?

Anonymous said...

Sadly, the assault on free speach seems to be working.

Anonymous said...

AFAIK, I'm not one of the so-called "John Does" mentioned in this suit (and Essent would have a hard time proving otherwise). That being said, I want to address the allegation made by Hud that this blog caused PRMC's census to drop.

Had Hud looked beyond his office (and the BS Dickie was telling him), he would have seen the decline in census stems from the policies and practices Essent has put into place. Cut staff, demoralize who's left, don't give them the right tools to do the job, blow off keeping the place clean, anger the local physician staff, and folks are going to have less-than-stellar experiences. Bad news travels very quickly, and folks will talk, whether good or bad news. Those that can, will go elsewhere rather than deal with the possibility of a bad experience.

If Dr. Slipknot-oops, I meant Lui- has departed the staff, then that's a positive step. Ditto for Pranulis in the overgrown broom closet that passes for an emergency room.

If PRMC is supposed to be the flagship of this sad company, what does this say about the rest of the hospitals? So far, it seems PRMC is the only place making money, and not that much. With the other hospitals losing money hand over fist, Essent's bottom line is written in red, as in red ink. They've been rebuffed in recent attempts at purchasing new properties, dumped off one that was drowning in red ink when it was purchased (and was hemmorhaging worse when Essent sold it), and have been scrambling for more money to stay afloat.

Allegations? Fantasy? Nope, all are facts, and can be gleaned from other sources. Perhaps some slick ambulance-chaser can demean these facts, or even shoot the messenger, but they still stand regardless.

I believe in free enterprise and capitalism as Adam Smith wrote in his excellent text, and have no problem with any company who wants to make a profit- after all, profit means more money to invest in a business (or at least it's supposed to). However, any company who sacrifices its employees and customer base to boost its so-called bottom line will not last for long, nor should last.

Most likely the big cheeses in Essent will laugh, scoff, etc. when they read this, but that's OK. I have broad shoulders, and I know I'll still be employed when Hud and his buds are trying to either rearrange deck chairs on the Titanic/Essent, or start up yet another for-profit healthcare business when Essent finally sinks. And when that happens, I as well as others who are disgusted with Essent and its thugs will have the last laugh.