Tallahassee Lawyer fights for Women's Rights and WINS BIG!
This is a major victory for women's rights and the right of a woman to determine their relationship with their OB-GYN.
What is special to this case is that the rights protected do not deal with abortion, but the right of an expectant mother to carry her baby to term without the the interference of a well-intentioned, but misguided OB-GYN.
David Abrams is a consummer rights attorney currently running for Florida State Senate District 6 as a Democratic Socialist. Be sure to check out his website at www.abramsbyyourside.com
A synopsis:
SAMANTHA BURTON,
CASE NO. 1D09-1958
This is an appeal of a circuit court order compelling a pregnant woman to
submit to any medical treatment deemed necessary by the attending obstetrician, including detention in the hospital for enforcement of bed rest, administration of intra-venous medications, and anticipated surgical delivery of the fetus.
The Full Ruling in PDF can be downloaded from www.mymsw.info
The entire text of the appeal follows.
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This is an appeal of a circuit court order compelling a pregnant woman to
submit to any medical treatment deemed necessary by the attending obstetrician,including detention in the hospital for enforcement of bed rest, administration of intra-venous medications, and anticipated surgical delivery of the fetus. The action was initiated in the circuit court by the State Attorney under the procedure described in In re Dubreuil, 629 So. 2d 819 (Fla. 1994). As provided in Dubreuil, after the State Attorney received notification from a health care provider that a patient refused medical treatment, the State Attorney exercised his discretion to determine that a sufficient state interest was at stake to justify legal action.
This appeal is moot with regard to Appellant because, as ordered, she
submitted to the hospital confinement, medical treatment and surgical delivery.
Two days after entry of the order, Appellant’s deceased fetus was delivered by Cesarean section. Thus, the justiciable controversy between these parties has expired. However, mootness does not preclude appellate jurisdiction if the issue is “capable of repetition yet evading review,” as in the case of medical issues which require immediate resolution. See Roe v. Wade, 410 U. S. 113 (1973); Matter of Dubreuil, 629 So. 2d 819(Fla. 1993); Holly v. Auld, 450 So. 2d 217, n. 1 (Fla. 1984); Philip Padovano, Florida Appellate Practice, § 1.4, p. 9 (2007-8 ed.).
The situation presented to the trial court in this case is capable of repetition yet evading review. Florida case precedent has addressed the right to privacy where a patient seeks to discontinue life-sustaining medical treatment, refuse a life-saving medical procedure, and as applied to statutory regulation of a minor’s decision whether or not to continue her pregnancy. In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990); In re Dubreuil, 629 So. 2d 819 (Fla. 1994); In re T.W., 551 So. 2d 1186 (Fla. 1989).
However, case precedent governing the use of a Dubreuil proceeding to compel a pregnant woman to undergo medical confinement, treatment and procedures against her wishes for the benefit of her unborn fetus is not found in Florida’s jurisprudence. In an effort to assist trial courts and counsel involved in these expedited, if not emergency proceedings, we exercise our discretionary authority to address this appeal. See In re T. A. C. P.,
609 So. 2d 588 (Fla. 1992); Harrell v. St. Mary’s Hospital, 678 So. 2d 455 (Fla. 4th DCA 1996).
The trial court found that the appellant had failed to follow the doctor’s
instructions and recommendations, rendering her pregnancy “high-risk,” and found a “substantial and unacceptable” risk of severe injury or death to the unborn child if the appellant continued to fail to follow the recommended course of treatment.
The trial court stated the rule that “as between parent and child, the ultimate welfare of the child is the controlling factor,” and concluded that the State’s interests in the matter “override Ms. Burton’s privacy interests at this time.” The court ordered Samantha Burton to comply with the physician’s orders “including, but not limited to” bed rest, medication to postpone labor and prevent or treat infection, and eventual performance of a cesarean section delivery.
The law in Florida is clear: Every person has the right “to be let alone and
free from government intrusion into the person’s private life.” Art. I, sec. 23, Fla. Const. This fundamental right to privacy encompasses a person’s “right to the sole control of his or her person” and the “right to determine what shall be done with his own body.” In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990).
The Florida Supreme Court has specifically recognized that “a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health.” Browning, 568 So. 2d at 11.
A patient’s fundamental constitutional right to refuse medical intervention
“can only be overcome if the state has a compelling state interest great enough to override this constitutional right.” Singletary v. Costello, 665 So. 2d 1099, 1105 (Fla. 4th DCA 1996).
Thus, the threshold issue in this situation is whether the state established a compelling state interest sufficient to trigger the court’s consideration and balance of that interest against the appellant’s right to refuse to
submit to the medical intervention the obstetrician prescribed. The state’s interest in the potentiality of life of an unborn fetus becomes compelling “at the point in time when the fetus becomes viable,” defined as “the time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid.” Roe v. Wade, 410 U. S. 113, 163 (1973); In re T. W., 551 So. 2d 1186, 1193 (Fla. 1989). The Legislature has defined “viability” as “that stage of fetal development when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb.” § 390.0111(4), Fla. Stat. No presumption of viability is provided in the statute.
Because there is no statutory or precedential presumption of viability, in
terms of the stage of pregnancy or otherwise, there must be some evidence of
viability via testimony or otherwise. Only after the threshold determination of viability has been made may the court weigh the state’s compelling interest to preserve the life of the fetus against the patient’s fundamental constitutional right to refuse medical treatment.
Even if the State had made the threshold showing of viability and the court
had made the requisite determination, the legal test recited in the order on appeal was a misapplication of the law. The holding in M. N. v. Southern Baptist Hosp. of Florida, 648 So. 2d 769 (Fla. 1st DCA 1994), “that as between parent and child, the ultimate welfare of the child is the controlling factor,” does not apply to this case. Unlike this case, in M.N., the parents refused consent for a blood transfusion and chemotherapy for their 8-month-old infant. No privacy rights of a pregnant woman were involved.
The test to overcome a woman’s right to refuse medical intervention in her
pregnancy is whether the state’s compelling state interest is sufficient to override the pregnant woman’s constitutional right to the control of her person, including her right to refuse medical treatment. Dubreuil, 629 So. 2d 819; Browning, 568 So. 2d 4; Public Health Trust of Dade County v. Wons, 541 So. 2d 96 (Fla. 1989).
In addition, where the state does establish a compelling state interest and the court has found the state’s interest sufficient to override a pregnant patient’s right to determine her course of medical treatment, the state must then show that the method for pursuing that compelling state interest is “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.” Browning,568 So. 2d at 14.
REVERSED.
VAN NORTWICK, J., CONCURS WITH WRITTEN OPINION, and BERGER,
WENDY, ASSOCIATE JUDGE, DISSENTS WITH WRITTEN OPINION.
Probe finds hundreds of cases of mishandled evidence in N. Carolina
Probe finds hundreds of cases of mishandled evidence in N. Carolina
By MANDY LOCKE, JOSEPH NEFF AND J. ANDREW CURLISS
The full impact of the disclosure will reverberate for years to come as prosecutors and defense attorneys re-examine cases as much as two decades old to figure out whether these errors robbed defendants of justice. Some of the injustices can be addressed as attorneys bring old cases back to court. For others, it's too late. Three of the defendants in botched cases have been executed.
"This report is troubling," said Cooper, who oversees the SBI. "It describes a practice that should have been unacceptable then and is not acceptable now."
The revelation came after a four-month review in which two former FBI agents pulled dusty case files from shelves to find the truths that analysts chose to keep to themselves.
Two former FBI agents, Chris Swecker and Mike Wolf, examined more than 15,000 cases at the invitation of Cooper, a Democrat who has been attorney general since 2001. The exoneration of Greg Taylor, a Wake County man imprisoned 17 years for a murder he didn't commit, prompted the review. SBI analyst Duane Deaver admitted in February that he failed to report tests indicating a substance on Taylor's SUV was not blood. Deaver, who was suspended Wednesday, said his bosses told him to write reports that way.
He was telling the truth. Swecker determined that the practice of not reporting results of more sophisticated blood tests was sanctioned by some analysts. In 1997, it became written policy. That policy remained in effect as recently as 2003.
Swecker's findings, he said, signal potential violations of the U.S. Constitution and North Carolina laws by withholding information favorable to defendants. Swecker stopped short of determining whether the hidden results affected guilt or innocence in the cases he examined; often there was other evidence in the cases that linked defendants to the crimes. Still, the withheld information could have made a difference in the sentences handed down.
"This is mindboggling," said veteran Wayne County District Attorney Branny Vickory. "It is really a nightmare for everyone. I don't know how we are going to make this right."
The audit is another black eye for an already beleaguered SBI.
McClatchy Newspapers reported this month in a series, Agents' Secrets, that analysts across the laboratory push past the accepted bounds of science to deliver results pleasing to prosecutors. They are out of step with the larger scientific community and have fought defense attorneys' requests for additional information needed to review the SBI's work. Cooper dismissed SBI Director Robin Pendergraft after she struggled to answer questions about SBI cases and policies.
"This is such a damning indictment on the SBI," said Staples Hughes, the state appellate defender, whose office oversees appeals of all citizens convicted by juries. "Why didn't they just say, 'We lied.' That's what they did. Sadly, I'm not surprised."
Prosecutors and defense attorneys are scrambling to review the 230 problem cases cited in Swecker's report. At least 80 defendants are still in prison, a top priority for Prisoner Legal Services, said Executive Director Mary Pollard.
Swecker's report paints a picture of a renegade unit at the SBI crime lab acting without rules and with misguided notions of the science of blood analysis.
In serology, police use rudimentary presumptive tests at crime scenes to determine where blood might be. Those tests are fallible, prone to giving false positives. So, analysts depend on more sophisticated, confirmatory tests to determine whether a substance is, in fact, blood.
Before 1997, the serology unit operated without report-writing guidelines. Analysts set their own criteria until 1997; that policy sanctioned the practice of not reporting negative or inconclusive results of confirmatory tests in lab reports.
Swecker found polices and practices out of step with the rules of serology. They were also far afield of fairness, according to the report.
"There was anecdotal evidence that some analysts were not objective in their mindset," Swecker wrote.
Tests used to confirm the presence of blood never yield "inconclusive results," Swecker noted. Two analysts interviewed for the report told Swecker that despite volumes of warnings about the potential for false positives on presumptive blood tests, they didn't believe it because they had not gotten a positive result when testing plant material and bacteria known to signal false positives. Those two analysts believed that positive presumptive tests were absolute indications of blood.
Eight analysts were involved in these bad practices. Some are dead; a few are retired.
Four still work for the SBI, and another performs contract work for the agency.
Behind the five cases Swecker deemed most problematic: Deaver, a 23-year veteran of the agency.
New SBI Director Greg McLeod suspended Deaver on Wednesday, pending further investigation.
The cost of these errors was tough for lawyers to comprehend Wednesday.
"This report reveals staggering lack of competence at the lab," said Mike Klinkosum, a Raleigh lawyer who represented Taylor in February and helped discover Deaver's withheld test results. "It's an abomination of the criminal justice system and an affront to all the decent law enforcement officers out there doing their jobs."
Cooper delivered copies of the report and a list of affected cases to district attorneys across the state little more than an hour before announcing his findings to the public.
At least one met the findings with anger.
"We've been out here asserting things as fact that just weren't," said John Snyder, district attorney of Union County. "Now, when I've got jurors coming in, I've got to enter into a whole line of questioning I never should have been forced to do. They won't trust us."
Snyder, a Republican, called for an independent audit of the entire crime lab.
On Wednesday, Cooper promised a more independent review would follow and that McLeod, the new director, would bring in experts as needed.
"The lab cannot accept a lack of thoroughness," Cooper said. "It cannot accept attitudes that are not open to the possibility that a mistake has been made. It cannot ignore criticism and suggestions from the outside."
What does K2 mean to you?
Have your adolescents stopped testing positive (+) for Marijuana but are still getting high? Have you ever heard about SPICE? How about K2.
Syhthetic Cannaboids like JWH-018 is currently not federally controlled in the U.S., but the Drug Enforcement Administration labeled it a "drug and chemical of concern" in 2009. March 2009: DEA Microgram Bulletin "INTELLIGENCE ALERT".
FOR MORE INFORMATION ON SPICE:
www.mymsw.info or
www.harveynorris.com
While remaining legal under federal law, several states have passed or proposed legislative action against spice and some cannabinoids:
On December 15, 2008, it was reported by the German pharmaceutical company THC Pharm, that JWH-018 was found as one of the active components in at least three versions of the herbal blend Spice, which has been sold as an incense, in a number of countries around the world since 2002.
Spice was claimed by the manufacturers to contain a mixture of traditionally used medicinal herbs, each of which supposedly produces mild effects with the overall blend resulting in the cannabis-like intoxication produced by the product. Herbs listed on the packaging include Canavalia maritima, Nymphaea caerulea, Scutellaria nana, Pedicularis densiflora, Leonotis leonurus, Zornia latifolia, Nelumbo nucifera and Leonurus sibiricus.
However, when the product was analysed by laboratories in Germany and elsewhere, it was found that many of the characteristic "fingerprint" molecules expected to be present from the claimed plant ingredients could not be located. There were also large amounts of synthetic tocopherol present. This suggested that the actual ingredients might not be the same as what was listed on the packet, and a German government risk assessment of the product conducted in November 2008 concluded that it was unclear what the actual plant ingredients were, where the synthetic tocopherol had come from, and whether the subjective cannabis-like effects were actually produced by any of the claimed plant ingredients or instead might possibly be caused by a synthetic cannabinoid drug.
Upon further analysis it was reported in a German toxicology report that there were some harmful effects of Spice. Although not containing the same additives, A three gram package of Spice is said [by one study] to have the same health effects as a pack of cigarettes, although no conclusive evidence of this exists outside of the study.
K2 is a herbal smoking blend made of herbs and spices sprayed with synthetic cannabinoids (notably JWH-018), which mimic the effects of cannabis. It is produced in China and Korea. It can be consumed in ways comparable to cannabis. It's named after the mountain K2 because of how high it gets people.
K2 is a product similar to Spice and comes in many varieties with names such as Blonde, Summit, Standard, and Citron. No official studies have been conducted on its effects on humans. Though its effects are not well documented, it may cause negative effects that are not noted in marijuana users, such as increased agitation and vomiting.
K2 is legal and readily available throughout most of the United States. Its use has sparked alarm in several states including Kansas and Kentucky which have banned the sale and possession of its active chemicals, and the town council of St. Charles, Missouri has passed emergency legislation banning its sale. Columbia, Missouri has also banned its sale. Springdale, Arkansas and the surrounding area have also banned K2. The US Army has banned soldier use. According to St. Louis law enforcement, the substance has not been banned in Missouri, though there have been discussions about a possible ban.
Toxicologist warning to parents: Look for signs of K2 -- 'fake marijuana'
Toxicologist Warning to Parents: Look for Signs of K2 -- 'Fake Marijuana'
ScienceDaily (Mar. 3, 2010) — In the last month, Anthony Scalzo, M.D., professor of toxicology at Saint Louis University, has seen nearly 30 cases involving teenagers who were experiencing hallucinations, severe agitation, elevated heart rate and blood pressure, vomiting and, in some cases, tremors and seizures. All of these teens had smoked a dangerous, yet legal substance known as K2 or "fake weed."
According to Scalzo, K2, an unregulated mixture of dried herbs, is growing in popularity because it is legal, purported to give a high similar to marijuana and believed to be natural and therefore safe.
"K2 may be a mixture of herbal and spice plant products, but it is sprayed with a potent psychotropic drug and likely contaminated with an unknown toxic substance that is causing many adverse effects. These toxic chemicals are neither natural nor safe," said Scalzo, who also directs the Missouri Regional Poison Control Center at SSM Cardinal Glennon Children's Medical Center.
What makes K2 so dangerous? Further testing is needed, but Scalzo says the symptoms, such as fast heart beat, dangerously elevated blood pressure, pale skin and vomiting suggest that K2 is affecting the cardiovascular system of users. It also is believed to affect the central nervous system, causing severe, potentially life-threatening hallucinations and, in some cases, seizures.
While JWH 018, a synthetic man-made drug, similar to cannabis, may be responsible for the hallucinations, Scalzo suspects that there is another unknown toxic chemical being sprayed on K2.
K2, also known as "spice," has been sold since 2006 as incense or potpourri. It sells for approximately $30 to $40 per three gram bag, which is comparable in cost to marijuana, and is available over the Internet.
"K2 use is not limited to the Midwest; reports of its use are cropping up all over the country. I think K2 is likely a bigger problem than we're aware of at this time," Scalzo said.
Legislators in Missouri currently are considering a proposed ban of K2, which Scalzo supports. In the meantime, he says that parents should be on the lookout for warning signs such as agitation, pale appearance, anxiety or confusion due to hallucinations.
"Look for dried herb residues lying around your kids' room. Chances are they are not using potpourri to make their rooms smell better or oregano to put on their pizza," Scalzo said.
http://www.sciencedaily.com/releases/2010/03/100303092405.htm#
