We’ve often touched on the subject of lab testing and defensive medicine, but as Happy Hospitalist points out [Oct. 11], ordering needless testing is by no means the only way the various parties endeavor to avoid liability. Another is the superfluous communication of not-really-urgent abnormal test results, sometimes on a doctor’s pager at 4 a.m.:

Unfortunately, patient safety is rarely an issue. It’s a giant game of shifting liability. The lab documents they notified the nurse–>lab off the hook if something bad happens. The nurse notifies the doctor —> nurse off the hook if something bad happens. Doctor is left with a critical value called 10 or 20 times a day, interrupting the entire flow of patient evaluations and discharges. Every time, I must stop what I’m doing and answer a page for a critical lab value, I lose valuable face time with patients. And it all adds up over the course of a day. I wouldn’t have a problem with the system, except that critical thinking has been removed from the equation. The nurse is not allowed to make judgments as to whether a phone call is warranted or not.

As a default protocol of calling all critical lab values, the liability is shifted up the educational food chain, landing ultimately on the physician’s lap. Often times a nurse is not allowed to not call a critical lab value. The problem is, what the hospital has defined as critical, does not apply to the vast majority of critical lab values reported. What’s considered critical by hospital standards, is a normal or chronic value for [that particular] patient.

Whole thing here.

• The Brokers with Hands on Their Faces Blog [via Radley Balko] #
• Still undecided on Calif.’s anti-gay Prop 8? Here’s why every paper of note in the state advises voting no [Box Turtle Bulletin] # Also radio’s John & Ken [same] #
• Ben Stein 2007, meet Ben Stein 2008 [Felix Salmon] #
• Everyone was glad to see Anchorage, Alaska restored as a salmon habitat but then… [Anchorage Daily News via Ted] #

• Would single-payer fix malpractice woes? Not likely given trial bar political clout [KevinMD] #
• Prosecuting candidates for crowd-inciting campaign speeches? Now there’s a truly bad idea [Point of Law] #
• Her busy docket: “For people like Oprah, lawsuits are a part of life” [Roeper, Chicago Sun-Times] #
• Nebraska hospital sues patient for refusing to leave [Happy Hospitalist; related earlier] #
• Community covenant craziness: “Dad’s in prison because we can’t afford to sod the lawn” [St. Petersburg Times] #

The provincial government of British Columbia will not punish the magazine Maclean’s for running an article exposing Islam to asperity (coverage at Steyn’s site). Jay Currie, via Steyn at NRO “Corner”:

…the way I read this decision is that it imposes a two part test a) are your words offensive and hurtful? b) are you a major media organization with deep pockets represented by serious lawyers. If “a” and not “b” you are a hate monger; if “a” and “b” you are engaged in political debate.

Commenter “Binks” at FreeMarkSteyn:

The ordinary Joe or Jane Canuck is no safer today than last year when this all started. The Human Rights Commissions have probably learned only two things: the internet bites back when bloggers get rolling on an issue; and don’t chew on famous and well-connected targets.

In free speech in Canada; Mark Steyn

When guestblogging at this site not long ago, Daniel Schwartz of the Connecticut Employment Law Blog contributed a highly popular post about the class-action lawsuit filed by three professional wrestlers (”Raven”, “Chris Kanyon”, and “‘Above Average’ Mike Sanders”) charging that they had been improperly categorized as independent contractors and in fact stood in the position of employees to Connecticut-based World Wrestling Entertainment, Inc. Now he’s posted a couple of substantial updates at his blog (Oct. 4, Oct. 8) introducing the litigants, attorneys and judge, describing how the suit can be expected to unfold, and explaining why its outcome might turn out to be important for those other than wrestlers and their fans.

Lawyer Robert Bundy, representing a key witness at the Ted Stevens trial, is said to be all “torn up” about the judge’s accusation that he was transmitting secret nods and movements to convey to his client what testimony was desirable. Eric Turkewitz says that in his experience coaching during testimony takes three forms: “speaking objections”, nods and head movements (which may be unconscious), and deliberate signaling. (Oct. 7; AP/Google).

Prof. Obbie (LawBeat) wonders (Oct. 7) whether an NPR interviewer could have been bolder in challenging the owner of Rin Tin Tin Inc. when she asserted that her trademark lawsuit against a Hollywood studio was not about the you-know-whats.

That whole “sober, sensible Switzerland” concept may need to be rethought. (Gautam Naik, “Switzerland’s Green Power Revolution: Ethicists Ponder Plants’ Rights”, Wall Street Journal, Oct. 10).

Waving threats of “contributory trademark infringement” and the like, Virginia lawyer and emerging Overlawyered favorite John Dozier has gotten more than one hosting intermediary to yank the Dozier-critical websites of opponent Ronald Riley. (Paul Alan Levy, Consumer Law & Policy, Oct. 3). “Unfortunately, when faced with a legal threat, many hosting sites will sacrifice your freedom of speech and send you looking for a new home on the Internet.” (David Ardia, Citizen Media Law Project, Oct. 9)(earlier). More: Ryan Gile, Las Vegas Trademark Attorney (via Ron Coleman).

From J-Walk Blog:

Keene Valley resident Jerilea Zempel was detained at the U.S. border this summer because she had a drawing of a sport-utility vehicle in her sketchbook.

U.S. Customs and Border Protection officers told Zempel they suspected her of copyright infringement.

She was released after more than an hour in custody at the Houlton, Maine, port of entry from New Brunswick, Canada.

Her release came only after she persuaded border guards she was an artist doing a project that involved a crocheted SUV as a statement against America’s dependence on oil and love for big vehicles.

(Lohr McKinstry, “Keene artist had hard time getting back into US”, Plattsburgh (N.Y.) Press-Republican, Oct. 4).

• Housing collapse: when are you safer, at the top of the cliff or after falling off? [Calculated Risk] #
• New American Spectator piece quotes Ted and me on demonization of deregulation [Point of Law] #
• Ted is eeeevil … so sez Daily Kos-ite on finding his name among signers of Palin trooper amicus [Celtic Diva's Blue Oasis] More: Aviva Cuyler, JD Supra. #
• Tried snipping the depressing bits out of the paper but all that was left was half the gardening column and a recipe #
• It’s my counterparty and I’ll cry if I want to [Naked Capitalism]

Fueled by Weil Gotshal & Manges partner rates in the $950/hour vicinity, “fees for lawyers, accountants and financial advisers in the Lehman case may reach $906 million, according to [bankruptcy lawprof] Lynn LoPucki”. (Bloomberg, Oct. 9). Elie Mystal at Above the Law notes a recent fee survey and concludes that “Lehman is getting the most expensive bankruptcy money can buy”.

Actually, bankruptcy professionals might earn even a very rich keep if they provided a quick and decisive way to allocate losses from the failure, move Lehman assets to their most productive uses and bring relative certainty to all parties. The prospect instead of slow, chancy, and hard-fought wrangling is one major reason why the administratively assisted “speed bankruptcy” model of financial institution reorganization, seen in the Washington Mutual case, has been winning praise from knowledgeable observers (e.g. Alex Tabarrok). If speed bankruptcy seems well suited to the crisis, one reason is that conventional, protracted, lawyer-run bankruptcy seems so ill-suited. More: Roger Parloff, Fortune “Legal Pad”, American Lawyer.

Fowzi Badavi Nejad, the only survivor among six terrorists who seized the Iranian Embassy and 26 hostages in London 28 years ago, “has reportedly been assured he will not be deported back to his native Iran because of human rights laws, and will instead stay in Britain at taxpayers’ expense.” (Chris Irvine, “Iranian Embassy terrorist to be freed this month can claim benefits”, Daily Telegraph, Oct. 9).

Ralph Nader’s “big campaign stop at Dartmouth College on Monday drew an audience of eight. The Connecticut Valley Spectator reported the news on its obituaries page.” (Mark Steyn, NRO “Corner”, Oct. 9).

Rutgers visiting lawprof Marc Edelman hopes the Supreme court will agree to clarify to what extent fans and other third parties are free to use players’ and teams’ names and statistics. (AmLaw Daily, Oct. 8; earlier here, etc.)

• Appeals court upholds Ted Roberts “sextortion” conviction [Bashman with lots of links, San Antonio Express-News]
• Alito incredulous at FTC: you guys have failed to raise a peep about bogus tar & nicotine numbers for how long? [PoL]
• Please, Mr. Pandit, do the country a favor and don’t litigate Citigroup’s rights to the utmost in the Wachovia-Wells Fargo affair [Jenkins, WSJ]
• Docblogger Westby Fisher, hit with expensive subpoena over contents of his comments section, wonders whether it’s worth it to go on blogging [Dr. Wes, earlier]
• “Title IX and Athletics: A Primer”, critical study for Independent Women’s Forum [Kasic/Schuld, PDF; my two cents]
• Case of whale-bothering Navy sonar, often covered in this space, argued before high court [FoxNews.com]
• More on Kentucky’s efforts to seize Internet domain names of online gambling providers [WaPo, earlier]
• Exposure to pigeon droppings at Iraq ammo warehouse doesn’t seem to have affected worker’s health, but it was disgusting and she’s filed a False Claims Act lawsuit against private contractor for big bucks [St. Petersburg Times, Patricia Howard, USA Environmental; but see comment taking issue]

Sounds like the stuff of parody, but at least one lawyer at a highly regarded firm (Louis Solomon, co-head of the global litigation department at Proskauer Rose) seems to be taking the idea seriously as one possible application of Congress’s recent expansion of the ADA. (Tresa Baldas, “A New Potential Disability: Being Male?”, National Law Journal, Oct. 7).

• “Just once I’d like to see a candidate respond: ‘Sorry but that’s not a legitimate function of the federal govt.’” [@radleybalko] #
• Pete Warden on reasons to be cheerful [PeteSearch] #
• Ribstein: Where was SOx in all this? [Ideoblog] #
• Top banks in Russia already govt-owned, hasn’t spared them in crisis [Pierre Briançon, Breaking Views] #
• Ed Glaeser: don’t try to prop up housing prices [NYT "Economix"; related, Salmon] #
• Yes, co-blogger Ted is now on Twitter and I think he needs more followers [@tedfrank] #