Friday, April 19, 2013

SILVERSTEIN v. ABINGTON MEMORIAL HOSPITAL: MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT: Do computers have more rights than patients?

Herein is an issue of potential Internet censorship and/or attempted prior restraint of the rights of a citizen to express him/herself freely:

At my post "Hospital defense maliciousness, aided and abetted by attorneys who ignore the ABA and Pennsylvania's Ethical Rules of Conduct Regarding "Candor Towards the Tribunal" I wrote about how a defense attorney in a case I unfortunately am substitute plaintiff in, that involving EHRs and the injury and the death of my mother, violated the requirement under the Code of Conduct of lawyers to exhibit candor before the tribunal, and perhaps 18 Pa.C.S. §4904 relating to unsworn falsification to authorities as well.

As also mentioned, the lawfirm was displeased, but did not respond to my offer to consider amending any factually erroneous assertions at that post.

Now here is their response:

4/19/2013MotionBY ABINGTON MEMORIAL HOSPITAL MOTION TO PROHIBIT COMMENTARY ABOUT THIS LITIGATION TO ANY PUBLIC CONTEXT WITH MEMORANDUM OF LAW WITH SERVICE ON 04/19/2013

The Motion text is here in PDF (it is a public document available to anyone on the Montgomery County, PA Prothonotary website).

The court has yet to rule on this new motion and Substitute Plaintiff's (me) replies.

I will, of course, abide by the Court's decision.

First: I note that I have been writing about issues of court process, not the substance of the case's actual issues.   I think citizens have a right to know about process in their courtrooms.  I am also Joe Public, exercising my rights to freedom of expression; I am not an attorney breaking some rule of case publicity.  I am not even the suit's initiator.  What rule(s) am I breaking, exactly, I'd like to know from the Defense.

Further, in my opinion, considering that multiple authorities including the Institute of Medicine of the National Academies (link), FDA (link), Joint Commission (link), ECRI Institute (link), National Institute of Standards and Technology (link), AHRQ-Agency for Healthcare Research and Quality at HHS itself (link) and others have written about risks of health IT to patients and the need for far more study and data on the issue, in my view there is a compelling public interest in being informed about the progress of this lawsuit.

We have not reached the day yet, I hope, when computers have more rights than patients.

I note that if the involved lawfirm, Marshall Dennehey Warner Coleman Goggin, would stick to the Rules of Conduct for attorneys, it would seem they have nothing to fear.

I note the remarkable statement about "unjustified and malicious personal attacks against Moving Defendant and defense counsel", i.e., pointing out exactly what they did.  Namely, fail to provide the required Candor towards the Tribunal regarding the undisclosed 2008 Stroud v. AMH decision on COM's, known to them (same hospital, same counsel) at the time multiple, frivolous contrary claims about COM's to harm my mother's case were made to the courts from 2010 to just recently in 2013. 

In fact, that statement itself may be an example of legal misconduct - rendering false charges and certifying them in writing to a court as true.  I note that I didn't write the Rules of Professional Conduct for attorneys; attorneys did, including Rule 3.3: "Candor before the Tribunal" whose obvious violation and my pointing it out is certainly not an "unjustified and malicious personal attack."

As far as "fair trials" go - their stated concern in this latest filing - the defense should have thought about that before breaking the aforementioned Rule of Professional Conduct, causing numerous delays.  (I wonder how many med mal cases with proper paperwork are stalled more than 2 years before Discovery even begins - the case was filed 7/16/2010.)

It seems to me that my mother deserved to be alive at the time of her fair trial ("Justice delayed is justice denied.")  I would certainly like to know if the Defense thinks otherwise.


-- SS

Apr. 19, 2013 Addendum:

As noted at Wikipedia regarding what appears to be a Motion for Prior Restraint:

Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all. Other forms of restrictions on expression (such as actions for libel or criminal libel, slander, defamation, and contempt of court) implement criminal or civil sanctions only after the offending material has been published. While such sanctions might lead to a chilling effect, legal commentators argue that at least such actions do not directly impoverish the marketplace of ideas. Prior restraint, on the other hand, takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship. The United States Supreme Court expressed this view in Nebraska Press Assn. v. Stuart by noting:

The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.
A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time.

Also, most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.

-- SS

2 comments:

Anonymous said...

It would be in violation of free speech that the court applies a muzzle. Usually, it is after a settlement thatnthe muzzle is applied. That too is a problem, since the truth about the dangers of HIT, in many cases, is quashed, to the detriment of the public health.

InformaticsMD said...

Anonymous April 19, 2013 at 3:06:00 PM EDT said...

It would be in violation of free speech that the court applies a muzzle.

If, after my response to this Motion, the Court decides to do so, I will abide by their decision.

I do believe the defense's throwing my blog post about their misconduct directly in the court's face after the judge missed it the first time (he reported that he never received our final brief on the matter) is not a particularly smart move, but what do I know?

-- SS