Public Interest Law Initiative


By Y. Enzo. Sarah Lawrence College.

An appellate lawyer has a vantage point analogous to that of an historian: he or she must sift through the record of pro- ceedings in the court below looking for legal or evidentiary error to determine if reversal is warranted purchase micardis 80 mg with mastercard blood pressure high in the morning. This quarrying gives the appellate advocate a grasp on what can and does go wrong and right in litigation and enables one to discern from these case histories what should and should not be done to win in liability disputes order micardis 20 mg visa blood pressure essentials reviews. Legislative advocacy complements appellate practice by adding a public policy dimension to the issues that constantly recur in medical liability disputes. It is from this trove of litigation and legislative experience that this chapter is composed. Emphasis is on California law, although reference also is made to comparable laws in other states; however, the objective is less to understand the details of the rules than the dynamic interplay between them that can and does occur when you try to navigate the rough shoals of litigation. The game3 played is, to be sure, a high stakes one in which you can affect the outcome to win, lose, or draw (i. To my mind, “winning” in the context of malpractice litigation means getting out of it as early as possible with no judgment of liability against you. If you have to go to trial, even if you eventually win your case, you will pay such a heavy price that the victory will seem pyrrhic. That is because preparing for trial, let alone going through it, is a lengthy and arduous process that consumes your time and physical and emotional resources to the neglect of your present and future life. In preparing for trial, you will be forced to put much of your present life on hold while you concentrate on reliving an event that happened in the past, frequently several years in the past. Dwelling on the past in a defensive way prevents you from realizing the present and planning for the future; it is by all accounts a draining process. The storytelling aspect of litigation requires your defense team to put a consistent “spin” or interpretation on the known and unknown facts that is a more persuasive explanation of what happened than the interpretation provided by the plaintiff. These “facts” will emerge in varying degrees of clarity from medical records and witness testi- 3 Use of the term “game” is not meant to trivialize or minimize the impor- tance of the litigation process, but rather to get the reader to better understand how to maneuver within it by “seeing” it in the sense that Wittgenstein sees what all games share: “You will not see something that is common to all, but similarities, relationships and a whole series of them at that. Additionally, 40 percent undergo a major depression as a result and 60 percent state that being sued for malpractice has altered their lives and practices completely. Chapter 2 / Litigation 15 mony, but they must be constantly placed in a context that will make sense to those deciding your case. This presupposes that although much can be learned about what happened to someone else in the course of medical treatment that is related to some injury that befalls the plaintiff, there will invariably be ambiguity about many aspects of what is learned. The longer litigation persists and the closer it gets to trial, the more facts will be known to both sides that require explana- tion as to why they do or do not add up to the defendant’s liability. Ultimately, if one must go to trial, the audience that hears and judges what is the best or most credible story will be the court and jury or arbitrator(s). Whatever attempts are made along the way to dispose of the case before trial will require a nonfiction narrative that is more believable than your opponent’s story, that makes better sense of what is known and not known factually than a contrary explanation pointing to your liability. Stories you tell along the way to trial must be consistent with each other even if the latest spin is, as expected, more detailed than earlier versions you present. Conflicting stories or interpretations of facts will, if they are known to court or jury, hurt your credibility and increase the risk of a finding of liability against you. With this sketch of the big litigation picture in mind, let us turn to rules of the game and then discuss what you should do from the time you are first forced to play the game. THE IMPORTANCE OF THE RULES IN THE LITIGATION GAME To win or avoid losing in any game other than one of pure chance, a player must be generally familiar with the rules of that game and the moves, likely and actual, of other players in it. That familiarity should not be on the detailed nuances of the rules, which is the responsibility of your lawyers, but on the importance and dynamics of the interplay between them. Rules of litigation fall into three categories: substan- tive, procedural, and evidentiary. The Substantive Liability Rule of Negligence and Its Four Constituent Elements of Duty, Breach, Causation, and Compensable Injury Substantive rules are those that define the conditions necessary to find liability. When it comes to professional liability or medical mal- practice, the most common substantive rule is negligence. Negligence 16 Hiestand is comprised of four essential elements, and the absence of any one element defeats liability. The first element is that a defendant must be shown to owe a duty to the plaintiff.

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This meas- exercise generic micardis 80 mg online 160 over 100 blood pressure, or “acute” exercise micardis 20 mg online hypertension and pregnancy, may provoke responses differ- urement is limited to dynamic exercise and usually to the ent from the adaptations seen when activity is chronic— steady state, when exercise intensity and oxygen consump- that is, during training. First, the type of muscle contraction (isometric, rhythmic) all influ- centrality of oxygen usage to work output gave rise to the ence the body’s responses and adaptations. Second, the apparent These many aspects of exercise imply that its interaction excess in oxygen consumption during the first minutes of with disease is multifaceted. There is no simple answer as to recovery has been termed the oxygen debt (Fig. In fact, physical activity “excess” oxygen consumption of recovery results from a can be healthful, harmful, or irrelevant, depending on the multitude of physiological processes and little usable infor- patient, the disease, and the specific exercise in question. Third, and more 551 552 PART VIII TEMPERATURE REGULATION AND EXERCISE PHYSIOLOGY O2 deficit Steady state chondrion reaches its capacity at about the same time. Iso- Resting level metric work intensity is usually described as a percentage of 0. Analogous to work levels relative to maximal oxy- Time (min) gen uptake, the ability to endure isometric effort, and many Oxygen uptake before, during, and after physiological responses to that effort, are predictable when FIGURE 30. For prolonged work, this energy is sup- although it can be increased by appropriate training. This maximal oxygen uptake is a useful but imperfect predictor plied by the oxidation of foodstuff, with the oxygen carried of the ability to perform prolonged dynamic external work to working muscles by the cardiovascular system. Maximal oxygen uptake is decreased, all else being equal, Blood Flow Is Preferentially Directed to by age, bed rest, or increased body fat. Working Skeletal Muscle During Exercise Maximal oxygen uptake is also used to express relative work capacity. A world champion cross-country skier obvi- Local control of blood flow ensures that only working mus- ously has a greater capacity to consume oxygen than a cles with increased metabolic demands receive increased novice. However, when both are exercising at intensities blood and oxygen delivery. If the legs alone are active, leg requiring two thirds of their respective maximal oxygen up- muscle blood flow should increase while arm muscle blood takes (the world champion is moving much faster in doing flow remains unchanged or is reduced. At rest, skeletal mus- this, as a result of higher capacity), both become exhausted cle receives only a small fraction of the cardiac output. In at roughly the same time and for the same physiological dynamic exercise, both total cardiac output and relative reasons (Fig. In the discussion that follows, relative as and absolute output directed to working skeletal muscle in- well as absolute (expressed as L/min of oxygen uptake) crease dramatically (Table 30. Cardiovascular control during exercise involves sys- The energy costs and relative demands of some familiar ac- temic regulation (cardiovascular centers in the brain, with tivities are listed in Table 30. For millen- cally, many arguments claim primacy for either cardiac out- nia our ancestors successfully used exercise both to escape put (oxygen delivery) or muscle metabolic capacity (oxy- being eaten and to catch food; therefore, it is no surprise gen use) limitations. However, it may be that every link in that cardiovascular control in exercise is complex and the chain taking oxygen from the atmosphere to the mito- unique. During strenuous exercise, sympathetic drive can begin to limit vasodilation in active muscle. When exer- Area mL/min % mL/min % cise is prolonged in the heat, increased skin blood flow and Splanchnic 1,400 24 300 1 sweating-induced reduction in plasma volume both con- Renal 1,100 19 900 4 tribute to the risk of hyperthermia and hypotension (heat ex- Brain 750 13 750 3 haustion). Although chronic exercise provides some heat ac- Coronary 250 4 1,000 4 climatization, even highly trained people are at risk for Skeletal muscle 1,200 21 22,000 86 hyperthermia and hypotension if work is prolonged and wa- Skin 500 9 600 2 ter is withheld in demanding environmental conditions. Muscle blood flow increases relative to the resting condition, as does cardiac output, but the higher mean intramuscular pressure limits these flow increases much more than when exercise is rhythmic. Initially, the blood flow increase is blunted inside a statically contract- motor cortex is activated: The total neural activity is ing muscle, the fruits of hard work with too little oxygen roughly proportional to the muscle mass and its work in- appear quickly: a shift to anaerobic metabolism, the pro- tensity. This neural activity communicates with the cardio- duction of lactic acid, a rise in the ADP/ATP ratio, and fa- vascular control centers, reducing vagal tone on the heart tigue. Maintaining just 50% of the MVC is agonizing after (which raises heart rate) and resetting the arterial barore- about 1 minute and usually cannot be continued after 2 ceptors to a higher level. A long-term sustainable level is only about 20% of lactic acid is formed in actively contracting muscles, which maximum.

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In the case of congenital dis-ability buy micardis 40 mg 01 heart attackm4a, taminated with the virus touch the mouth purchase micardis 80 mg without prescription blood pressure medication in the morning or at night. The brain stem, individuals may have limited opportuni- spinal cord, and neuromuscular system ty to explore or express sexual desires. The Anticipatory guidance provided to par- nerve cells or motor neurons affected by the ents from the time they are first told about poliovirus are located in the anterior horn their child’s diagnosis can be extremely of the spinal cord and extend to the mus- helpful in preventing many of the prob- cles. As neurons are affected, muscle cells lems that can affect the child’s psychoso- lose the ability to contract, resulting in cial development and can help the child paralysis. If motor cells are able to over- gain full affective and personality growth come the virus, paralysis may be tempo- and maturity. Motor cells unable to overcome the each stage of development, new needs virus, however, die, resulting in perma- and new demands arise. Social encounters nent paralysis or in some instances weak- outside the home should be encouraged ness of affected muscles. The extent of Conditions Affecting the Spinal Cord 91 paralysis is unpredictable. Although the When an extremity is involved in child- disease primarily affects children, the hood during a time of continued growth, devastating epidemics of polio that spread the rate of growth of the affected extrem- across North America and Europe from ity is delayed, resulting in a smaller ex- the 1930s to the mid-1950s severely dis- tremity when full growth is reached. Jonas Salk developed the in- ever, sometimes all four extremities are activated poliovirus vaccine which was affected, sometimes only one extremity is followed in 1960 with the development of affected, or sometimes paralysis extends a live, attenuated oral poliovirus vaccine to only the lateral half of the body (hemi- by Dr. As a result of the vac- plegia), with one arm and one leg being cines, widespread immunization against affected. This type of polio is called para- polio was begun, and polio is now nearly lytic polio. When the poliovirus affects the abolished in the United States and other brain stem, the muscles that control countries in which an immunization pro- breathing and swallowing are also affect- gram is widely available. When res- poliomyelitis has been nearly eradicated piration is affected, individuals require in the industrialized world, the residuals mechanical respiratory support such as of the condition experienced by those the “iron lung. In addition, polio depend on the nerves affected and small outbreaks continue to occur in the degree of damage. Individuals with developing countries, and a few cases con- affected lower extremities have difficulty tinue to appear in the industrialized world with ambulation and may require a as well. When upper extremities are involved, self-care skills Manifestations of Poliomyelitis may also be affected. If the trunk muscles are affected, a muscle imbalance may Individuals in the initial stages of polio result, lead to scoliosis (lateral curvature are acutely ill. Initial symptoms are usu- of the spine), which can interfere with ally nonspecific, such as gastrointestinal breathing as well as the functioning of or upper respiratory symptoms accompa- internal organs. Symptoms later progress to After the initial acute episode of polio- headache, stiff neck, and muscle pains. The degree of residual disability group of muscles are affected; in others, is dependent on the extent of the perma- paralysis is widespread and may include nent damage to nerves that has occurred. Extremity involvement is often asymmetrical, so that one extremi- Manifestations of Post-Polio Syndrome ty may have major paralysis while the opposite limb has only slight weakness or Poliomyelitis itself is not a progressive may not be affected at all. Consequently, many individu- cles are paralyzed, functions of sensation, als who contracted the disease 30 or more bowel and bladder control, and sexual years ago adapted to residual paralysis, response are left intact. Despite in- myelitis began to seek medical advice creasing decline, however, individuals will because of new symptoms that ranged not return to the level of disability they from mildly to severely debilitating. At experienced when polio was in its acute first they were not taken seriously. With appropriate exercise, strength were classified as having “emotional dis- and function can be improved and dete- turbances,” or symptoms were merely rioration slowed, if not halted. Spinal tap or fecal sample can ety of symptoms in individuals who had be used to confirm the diagnosis. The recovered from poliomyelitis many years diagnosis of post-polio syndrome is, at earlier. Symptoms of post-polio generalized fatigue syndrome may be difficult to distinguish • new muscle weakness in muscles not from other degenerative disorders of mus- previously affected cles and joints, such as osteoarthritis or • muscle pain (myalgia) and/or joint osteoporosis. General medical evaluation, pain routine laboratory tests, electromyographic • respiratory difficulty studies (graphic record of the contraction The cause of post-polio syndrome is un- of a muscle as the result of electrical stim- known (Burk & Agre, 2000). It appears ulation), and nerve conduction studies may that most of the motor neurons original- help to identify and exclude other dis- ly damaged in the initial bout of polio are eases. Magnetic resonance imaging may be involved in post-polio syndrome and used to exclude other conditions of the that most individuals who had polio are spine that could cause similar symptoms at risk to develop the syndrome.

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