1/30/2000

As matters move-along on multiple tracks, a few summary-points can be
provided.  Again, although I'm slogging along here in a linear fashion,
any problem-solving suggestions out-there are invited.  This is a bit
lengthier than I'd hoped, but it lays-out the current concerns within
the context of the defined progress that has occurred on all three
fronts.

Tobacco:

It may be recalled that there are, currently, three separate suits
pending.

1)--My suit against the approval of the Master Settlement Agreement WILL
be appealed to the US Supreme Court, inasmuch as the "Sugar Daddy" came
through, the DC Attorney is gaining a crash-education this weekend, and
we have a (luxurious, as these things go) three week respite prior to
the filing deadline.
It may be recalled that the front-page article in the Philadelphia
Inquirer noted my desire to file this document, "although he would need
help for that."  It has arrived, and the action that is planned is,
indeed, based upon my quotation (in my blast e-mail of 12/22) from The
Federal Rules of Civil Procedure [Part IX, Title 28, Judiciary and
Judicial Procedure--Selected Provisions, subsection 1257.]--

"State Courts; certiorari:  Final judgments or decrees rendered by the
highest court of a State in which a decision could be had, may be
reviewed by the Supreme Court by writ of certiorari. . .where any title,
right, privilege, or immunity is specially set up or claimed under the
Constitution or the treaties or statutes of, or any commission held or
authority exercised under, the United States."

My cousin Howard, one month ago, emphasized one point that must be
included in this document:  I am concerned, as a parent, that the MSA's
violations will entice my 9-1/2 year-old son to smoke in the future.
Also, the previously-cited op-ed piece hadn't been published in the Inky
for a fortnight following approval and I asked that it be held until I
file the appeal (allowing for insertion of relevant interim updates).

2)--My suit against Philip Morris pends before PA Superior Court; I
await instructions.  It may be recalled that the underwriting of
billboards that violate the MSA are a national phenomenon.

3)--My suit against the AG pends before PA Commonwealth Court, and I
received a Demurrer from the AG last week.  He requested dismissal
because he didn't receive notice by Registered Mail (how could he
respond to a document he hadn't received?) and because he didn't receive
a copy of the MSA from me (how could he deny having read a document the
AG professes to have had a major role in having composed?); he also
requested dismissal because:  "The MSA provides that 'no portion of this
Agreement shall provide any rights to, or be enforceable by, any person
or entity that is not a Settling State or a Released Party.'  Petitioner
is not a signatory to the Agreement, is not a Released Party, and has no
basis for asserting rights based upon the Agreement.  The Commonwealth's
settlement of its litigation against the tobacco industry did not create
any obligation on the part of the AG to seek specific sanctions against
a signatory to the MSA.  Nor is the AG otherwise obligated to respond to
a private citizen's demand for action."

FASCINATING!!!

First, I believe this is the first time the AG has "stipulated" in a
document filed in any court that a private citizen is not a Released
Party.  It may be recalled that this was a key reason why we had filed
our litigation in the first place, and all subsequent responses from the
AG had been evasive.  This is, as they say, "worth the price of
admission," for it creates a ripple-effect through other efforts.

Specifically, despite the fact that the AG knows I am currently pursuing
litigation against Philip Morris for its advertising of Marlboro
cigarettes (I made sure I sent him a copy thereof), he doesn't view me
as being engaged in public interest litigation...at least to the degree
it is defined in the MSA.  This is an encouraging portent if/when any
need were to arise in the future to attempt to improve upon the MSA.

Second, even if the MSA doesn't create an obligation on the part of the
AG, the invoked statute does.  [The text of my filing can be reviewed by
hyperlinking from my Web-Site.]  Even if there is prosecutorial
discretion, a private citizen has the right to petition his/her
government so as to prod it to act; such an effort cannot be dismissed
out-of-hand without first having afforded him/her the opportunity to
have presented his/her case.  The controlling law is the "charge" that
exists through the PA Constitution regarding the duties of the occupant
of that office.  As long as the MSA authorizes the AG to act--and it
CERTAINLY does that--it does not cancel-out (let alone supersede)
statutes that govern the AG's conduct.

Thus, although I've forever been viewed as excessively optimistic, I
think it will be difficult for the Commonwealth Court to deny me
standing, this time, and there is NO QUESTION that this case would have
to be reviewed by the PA Supreme Court were it to do so (because
first-level appeal from the court of primary jurisdiction is mandated).
So, I'll be assured of an opinion that further litters the paper-trail
that I'm attempting to create, for future reference.

I have authored and will update model legislation that would properly
expend the MSA-$$$ after I have had the opportunity to review that which
the Governor will propose next month.  I have not made major efforts to
find anyone to introduce any such bill, inasmuch as it's unclear it will
be necessary.  Indeed, my ideas could be mainstreamed through amendments
and/or through parallel legislation, inasmuch as the fundamental desires
I've pushed (Tobacco Control and Medicaid Expenditures) have been
honored.

One final point:  the recently-filed Federal Class Action litigation, if
it survives Dismissal Motions, could yield a fiscal impact-statement
regarding the health effects of smoking; if it does, this could help me
immeasurably with regard to documenting the "damages" suffered by Youth
by the AG having forfeited their future capacity to sue Big Tobacco.
[Until now, it may be recalled, I've been citing Engle, but adopting PA
data directly would be preferable to invoking Florida data
by-reference.]  Curiously, were such an environment created, the
Plaintiffs would be arguing the costs are much higher than what the MSA
provided (supporting my view) while the Defendants would be arguing
(somehow) that the costs are commensurate with the MSA's outcome.
Noting that Federal law mandates return of any such excess-monies to the
Feds (forfeited after passage of the Hutchinson Amendment) and then to
the Medicaid Recipients.  I'll call the involved individuals (named in
yesterday's article in the Inquirer) for input, even if the "interests"
of these parties lie elsewhere (i.e., in not disturbing the MSA's
approval, now that the $$$ has begun to flow).

http://www.phillynews.com/inquirer/2000/Jan/29/city/STOBA29.htm

*

Blues:

I filed the documents yesterday that may be reviewed at the end of the
Blues Homepage, on my Web-Site.  No comments were received after they
were posted a week ago, but minor edits were made (grammar, etc.) prior
to my having remitted them prior to tomorrow's deadline.

Immediate time-frame considerations are as follows:  Reply Briefs are
due by 2/21, and I'll generate an omnibus response to what I receive
from everyone else later this week.  Because what I have filed may be
perceived already as a Reply Brief to each of the six pending motions,
one could argue my work has already been completed, but I will ensure
anything "new" in what everyone else files is addressed in whatever I
file on 2/21.  Thus, I anticipate adopting by-reference what already has
been submitted, clarifying whatever is necessary.

Projected time-frame considerations are as follows:  After 2/21, the
Presiding Officer will issue a comprehensive ruling (with or without
calling a pre-prehearing conference), after which time he will deal with
the remaining two motions dealing with discovery/confidentiality (with
or without calling a prehearing conference), after which time he will
initiate the appropriate briefing schedule (preparatory to calling the
actual hearing).

This process will probably yield hearings by summertime, and I hope to
have "real" co-counsel onboard by then.  Two major organizations are
out-there but, paradoxically, I haven't yet pushed for final answers
because of the capacity, thus far, to hold-up my end (as documented by
the above).

*

Union:

I'm working multiple fronts, and will now ask multiple medical staff
presidents for the opportunity to educate the electorate regarding this
and the prior two issues (plus the possibility of filing class action
litigation against insurers that delay/defer payment on clean claims,
violating Act 68).

The model legislation (that I helped author) approved by a consortium
two months ago is to be amended along the lines I proposed [per data on
my Web-site drawing upon the Texas Experience].  I have ID'ed one
legislator of each party in each house as potential introducers but,
again, until the final draft has been generated, I've been soft-sell.

The following article was published this past week:
 

http://www.jewishexponent.com/Zoom.asp?uid=&storyID=587&szparent=497&pubID=28&show=Zoom&action=False&Archive=

http://members.home.net/rsklaroff/union-PR-Exponent-1_27_2000.html

Jewish Exponent 1/27/2000 [Health]

Mobilizing the Medical Troops
Movement Afoot to Unionize Pennsylvania's Doctors

By : Steve Feldman

If Dr. Robert Sklaroff has his way, garment workers will not be the only
ones singing “Look for the
union label.”  Sklaroff, an oncologist affiliated with five area
hospitals, has successfully helped organize the staff of 20 doctors at
John F. Kennedy Memorial Hospital in Northeast Philadelphia into a
union, and he hopes other hospital staffs will soon follow suit. The JFK
staff, Sklaroff said, is the first staff of a non-governmental hospital
in the commonwealth to join the labor movement. They are now
part of the Federation of Physicians and Dentists.  [etc.]

...

What is amazing is Lila Kroser's revelation of her personal antipathy
towards unionization.  She is the Phila. Co. Med. Soc. President, but
expresses the view that unionization is "unprofessional" because of the
potential to strike.  Steve deftly followed with my disclaimer, but she
was unmoved...as have been most conservatives within organized medicine
(who may have personal interests to protect).

[While rounding today, I chatted with a medical/science columnist who
recalled he had been a pharmacist and that the same arguments had been
made prior to the engulfment of that profession by the corporations.]

What is "cute" about this situation is that the AMA/PMS policy endorsing
collective bargaining was composed by myself (the former through the
OMSS and the latter through the HOD).  The Organized Medical Staff
Section had led the fight to gain AMA action, while the Pennsylvania
Medical Society's House of Delegates had adopted the resolution
but--apparently--has no intent to implement it.  This latter point is
illustrated both by deprecating comments regarding the JFK achievement
it has issued PLUS (now) the expressed-antipathy that exists on the
county-level.

Thus, there is an open-opportunity to develop the Delaware Valley
marketplace; the mood in the blurbs is comparable to that of the PCMS,
muted by the distance between City Hall and the locations of their
medical society headquarters.  I have tried to educate them, but to no
avail...not withstanding inroads achieved by FPD among Delaware County
Orthopods.  This latter point may be due to the strong efforts of
certain leaders in that particular entity who have had high-leadership
positions in the PMS (Drs. Lawrence & Richter, immediate-past-president
and president-elect respectively).

What is even "cuter" is that my model legislation would preclude strikes
(her alleged desire) while that of the PMS wouldn't (despite the fact
that its version was allegedly based upon that adopted in Texas, which
DOES include this prohibition).

What is "cutest" is that organized medicine would, apparently recognize
the plight of physicians/members while forestalling any effort to fix
the problem until after legislation were to be passed (as if the
dominant insurers would suddenly become passive?).

Lila embodies the "Waiting for Godot" posture adopted by organized
medicine; it may be recalled that, in Samuel Beckett's play, two people
buried in the sand (talking heads) talk for two hours and Godot NEVER
arrives.  Lila has the established practice and the ability to refuse
HMO; younger and less fortunate physicians (i.e., the overwhelming
majority of her colleagues) do not have the opportunity to make this
choice.  Although she used the same words to describe the current plight
facing doctors ("boxed in") as had I, she offers no useful suggestions
(as I had found customary prior to my having resigned from the PCMS
almost a year ago).

D.O.A.:  The brain-trust that, as recently as three years ago,
characterized the vibrant "can-do" leadership of the PCMS.

A Presidency is such a terrible thing to waste.

*

To summarize, the Tobacco litigations proceed apace, yielding
cross-contradictory revelations along the way and portending US Supreme
Court review (particularly as other cases in other jurisdictions
mature).  The Blues preprepreprehearing procedure continues
methodically, yielding a result, someday.  The unionization
proselytizing process is embryonic, but functional and gaining
adherents.

Critique/suggestions/feelings/responses/thoughts invited.
 
 

  Robert B. Sklaroff, MD
  Regional Coordinator
  Federation of Physicians and Dentists
                             <rsklaroff@home.com
                             http://members.home.net/rsklaroff.html>
  Medical Oncologist and Hematologist,
  Suite #130, 50 East Township Line Rd.
  Elkins Park
  PA
  19027-2253
  USA
                             Cellular: 215-313-3869
                             Fax: 215-663-8388
                             Work: 215-663-8200
  Double-click over my name [above] to enter my Web-Sites to read up-to-date medico-political data.
  [The FPD is affiliated with the National Union of Hospital and Healthcare

Memo:(Robert B. Sklaroff, MD, is a Montgomery County
medical oncologist. His Web site is
http://members.home.net/rsklaroff/homepage.html)