Horowitz LAW BLOG
 
                                              Legal insights, Case Musings &
                                                                                                                                           Politically Incorrect Opinions

 
My Gardener will earn more than my Primary Care Doctor - Soon

The California Medical Board and the California Board of Chiropractic Examiners have taken a CHILLLING TURN.  Since the takeover by the California Department of Consumer Affairs it has been next to impossible to negotiate any reasonable resolution of charges. Once the charges are filed, these Boards are taking an all or nothing approach.  Facts, reason and rationality are gone.  The word from the top appears to be "take no prisoners".

There is a reason this is happening.  The entire medical profession is under attack.  We don't need physicians because a two year degree qualifies a PA to do everything an MD does and more than a chiropractor will ever do.  Nurse Practitioners replace physicians in many contexts.  The reason is simple.  Cost.  PA's and Nurse Practitioners earn less and ultimately physician pay will be reduced.  Some practices (temporarily) profit from this by hiring PA's & NP's to do work at relatively low pay and profit from the markup.  But the next shoe will soon fall.  PA's & NP's pay will be pressured down by strict limits on the costs for services with substantial downward pressure as we move toward either a single payor or group decision based payment system.  Diagnosis and treatment will be predetermined by computer models and committee.  PA's & NP's will be forced to follow these protocols and as the independent thought process of the PA's & NP's is taken away, so will compensation.

The VA scandal is not a scandal.  It is our future.

Where's Hollywood Now

Three Israeli teenagers were kidnapped by Hamas. http://www.cnn.com/2014/06/15/world/meast/west-bank-jewish-teens-missing/  and Hollywood and Michelle Obama aren't tweeting about them.  Racism is alive and well in America.  as in nazi Germany, the government and the political elite tell us who we should hate.  The sheeps follow along, feeling very safe and very politically correct.  I still have free speech but if I were a judge or a politician it would be suicide to publish these thoughts.  "Kill the Jews", bad, you can't say that.  Justify the conduct of those who kill the Jews based upon fake political talking points, that's done all the time, from the President to the the bloggers.  No worries, it will end soon when we allow Iran to create its nuclear weapons and they wipe out another 6 million.  After that, who's next?

The Anti Death Penalty Conundrum

If you oppose the death penalty as physically cruel must you also oppose voluntary death procedures (per Dr. Kevorkian) ?

Death Penalty arguments are very interesting. The argument is that there is no humane way to execute a prisoner (and recent disasters are used as an example). BUT BUT BUT --- what about the Dr. Kevorkian argument that there are humane ways to end life for those suffering intractable pain?
If the anti-Death Penalty people prevail on their current argument is this then the end of humane end of life procedures ?

TWO VICTORIES

In our defense of the authors of the "Muslim Mafia" in Washington DC, the court just denied CAIR's motion for summary judgment.  (Our clients exposed CAIR as an American offshoot of Hamas).  Our motion was granted in major parts.  One of the two CAIR plaintiffs was knocked out entirely and much of the remaining case was thrown out or put in jeopardy of being thrown out in a few months.  Here are the links:

News Article

Judge's Decision

The second victory is more personal.  State Senator Leland Yee pushed through (by one vote) a bill that would give all killers who committed there crimes before age 18, a chance at parole.  He refused to exclude serial killers and pure evil psychopaths from his bill, such as the monster who killed my wife Pamela.  Worse, he made a mockery out of remorse by defining it as writing to one's family even if one denied guilt or even relished in the act.

He arrogantly refused to consider modifications to make his bill sane and fair.  He was clearly bought and sold by someone or some group.

Well his bill passed but today there was some retribution.  Leland Yee was arrested for various counts of political corruption and gun running.   I had already exposed (years earlier), his arrest in Hawaii for shoplifting. (He fled Hawaii and never returned.)  This corrupt fake was running guns at the same time he was sponsoring legislation to control guns.

Here is a link to an article on his arrest.

May he rot in hell and spend the rest of his life in prison.  That would be justice and more than he deserves. 

Napa County Felony Dismissals

According to my opponent in the Coby Phillips case (prosecutor Tom Kensok) 27 percent of the 1,000-plus cases in Napa County that are charged as felonies that year were reduced to misdemeanors while another 30 percent were dismissed,

So more than half the cases are either dismissed or reduced to misdemeanors.

Kensok is running for DA in Napa and he cited these stats in his campaign.

His source is a public source, the State of California Judicial Council keeps the records.

I have to admit that I have not (in the past), checked these stats before negotiating in various counties.  I should have and I will in the future.

Napa's numbers are stunningly weak for prosecutors (and excellent for defense attorneys).  I have never had a county that either dismissed or reduced almost 60% of their felonies.

The article is in the Napa Valley Register.  So I learned something today - Even an old dog can learn a few new tricks.  :] 

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CALIFORNIA MAGIC THEATER

Why am I so obsessed with magic?  And why do I love this place.  Well, too many reasons to list here but it started over 50 years ago when my dad used to take me to Lou Tannen's in New York and it was alive and buzzing with people all excited about this amazing art.   As an adult and a parent, I view magic as a source of wonder but also education. 

As Arthur Clarke once famously said, "Any sufficiently advanced technology is indistinguishable from magic." I am so often infuriated by people who use gadgets, pseudo science, who tout "homeopathic cures" (water in a pill sold for crazy high prices).  Magic teaches people that the astounding and impossible, really does have a scientific - non-supernatural basis.  True magicians create wonder but never cross the line and claim true supernatural powers.  Kreskin's weakness was his tendency to cross that line and in doing so violate an unspoken ethic.  Uri Geller and his fake "powers" turned to the ridiculous as Johnny Carson exposed him as a fake.  And yet, properly done, magic lets you experience .... real magic ... real powers .... real supernatural events but without the harm of the fakirs. 

California Magic Theater in Martinez is the highest level of magical performance.  The magic takes place inches from your face.  Words that you write on paper and fold, are "read" through the mind transference power of a magician who did not see you write and could not have known ..... but he did. 

All this being said.  I know that magic is an art and a science but when I am at the theater, I am 10 years old and Peter Pan really flies and yes, the Queen of Hearts that he distinctly put in my hand, really did transform by itself, into the Ace of Spades.  It did, it really did.

514 Main St, Martinez, CA 94553
(925) 374-0056

The Chiropractic Profession is FINISHED ....

Unless .....
Laureen Bethards & I will be filing a brief next week where we challenge the constitutionality of the State of California's take over of the California Board of Chiropractic Examiners.  This is a critical issue for DC's in the state because the Department of Consumer Affairs which now runs the Board, has a far more limited view of the scope of chiropractic than did the pre-takeover BCE.

In California, the attack on DC's is very personal.  The Chiropractic Act and subsequent interpretations of that Act, have long allowed DC's to use heat, ultrasound and mechanical devices to treat muscle, joint, connective tissue, etc.   Now those definitions are being significantly tightened.  Lasers, sound waves that are audible, heat generated by means other than hot packs, machines that rely upon technology not available in the horse & buggy days (when the Act was passed by the voters), are all going to be banned.

But worse, any DC's using these technologies are going to be personally targeted.  The larger practices and the higher profile DC's will be subject to Board attacks on their licenses.  Criminal prosecutions will be sought as the insurance companies start working with the Department of Consumer Affairs.

Lawyers for the BCE will give legal advice based upon the instructions of their masters, the Department of Consumer Affairs and not based upon the needs or requests of the Board of Chiropractic Examiners.

Let me be perfectly clear.  There IS NO BOARD OF CHIROPRACTIC EXAMINERS.  It is a name that belongs to a corpse.  The real name is the Department of Consumer Affairs which has its own economic and political agenda.  It runs the Board.  It controls the people on the Board.  It leads attacks against legitimate DC's. 

Unless we win our lawsuit and depose the king, the BCE will be the knife in the back of the profession. 

If I were a California Chiropractor I would count my career longevity as less than 5 years.  After that, (If the DCA wins), you will be glorified physical therapists.

Is the Board of Chiropractic Examiners a Fraud ?

Read our attack on the Department of Consumer Affairs unlawful takeover of the Board of Chiropractic Examiners.  We assert that the present BCE is not THE Board of Chiropractic Examiners but instead is simply the DCA using the name Board of Chiropractic Examiners.  If we are right, the present Board has no power to license or discipline.  Use this link. 

http://whitecollar.us/images /DCA_Cannot_Control_the_Board_of_Chiropractic_Examiners.pdf

It is our argument that the Chiropractic Initiative Act created the Board and legislation unlawfully reconstituted the "Board" as a branch of the Department of Consumer Affairs.  If we are right, then the current Board is a Fraud and cannot discipline or license !!!

New Attack on Chiropractors - Shockwave Therapies

The California Board of Chiropractic Examiners (BCE) is in turmoil.  There is a massive debate about whether the ORTHOPEDIC use of sound waves is or is not lawful when done by chiropractors.  Ultrasound is specifically authorized in California and the only difference between shock waves and ultrasound is the frequency of the waves.  There are many authoritative journal articles showing that in the right case, shock wave therapies are very effective.  While we wait for the Board to address the issue and vote, we have learned that the Board is being manipulated by one or more people who are sending ANONYMOUS complaints against chiropractors who either favor shock wave therapies or who actually use the technique.

This is a chilling development because it allows a hidden, malicious group, to put the license of chiropractors at risk simply because they voice a belief that a practice is beneficial.  Those who use the technique face even greater threat even though the use of mechanical devices and sound waves has long been accepted as mainstream in the profession.

We are waiting to see how the enforcement branch and executive director respond to these complaints.  The correct response would be to launch a criminal investigation to see whether these anonymous complaints are part of a practice to extort, to punish speech or to influence the BCE's decision making process.

More on this later.

Skakal Decision - Unfair Attack on Mickey Sherman

The press I'm reading on the Skakal case contains repeated attacks on Mickey Sherman for showboating and not putting on an excellent defense.  From my experience, this type of attack is unfair and contrived. Anyone who knows Mickey understands that he has a remarkable talent for communicating in a clear and honest way.  The facts of the case a decade ago were put together by private investigators and I am sure there was plenty of family input and family money.  

The fact that years later new evidence emerges of other people supposedly confessing or stones that were unturned - well, that happens ALL the time and it almost never means anything.  The Kennedy family and Skakal have nothing to do with his time, or their massive money, except to attack the verdict.  The prosecution and the families of the victims have lives to live and other things to do.

I have seen nothing to justify attacking one of the nation's finest attorneys and I hope no one takes those attacks seriously.

It makes me angry to see it.

10/25/2013   Daniel Horowitz

Musings About the Long Closed Berkeley Court

Berkeley California was the hotbed for rebellion in the 60's and in the 70's the small local courthouse was the home of some wonderful (locally elected) judges and some interesting court cases.  Once the courts merged (and Municipal Courts vanished and became Superior Courts), local judges vanished as elections were now countywide for all judicial positions.  I opposed this change for the very reason that it eliminated the local flavor of judges. 

I remember one time that a person who was mentally ill, was referred to a psychiatrist to see if he was competent to stand trial.  The shrink's report came back saying "no", the patient was severely psychotic.  In support of this finding, the psychiatrist cited the belief of the patient that while the patient was in the Berkeley Court, a large black dog wandered in and out of the courtroom.

Judge Conger showed me the report when it arrived.  We couldn't stop laughing. In Berkeley, Judge Ron Greenberg had a large black dog.  The dog got lonely at home, so Judge Greenberg brought the dog to court and it regularly wandered all around the courtroom. 

Another time, a homeless (and again mentally ill) man, was being sentenced on a minor crime. Judge Brosnahan had no intention of imposing any jail time.  She referred the man to an alcohol treatment program and and then announced that the jail sentence would not be imposed.  The legal words for doing this were "execution of sentence is suspended."  As she said these words, the man fell to his knees and begged Judge Brosnahan not to execute him.  No matter how the judge tried to explain what she meant, the poor man couldn't understand and he kept crying and begging.  Finally, the judge simply said, "I will not execute you."  The man smiled and that was the end of that.

Criminal Law Gone Crazy

The criminal law world has gone Crazy !

A client of mine was raped by a man who just a few years before had beaten his wife.  He was convicted of the "wife beating" and because he was illegally in this country, he could have been turned over to the feds and deported.  However, in the politically correct climate of San Francisco, his hatred toward women was ignored and his "illegal status" made him someone entitled to protection.  The rape he committed caused irreparable harm to our client.  (We got her $ 2.5 million dollars against the "party bus" company that hired the rapist but she would give up every penny if we could roll back the clock and make the event vanish.)


Meanwhile, an Arab-American store owner who I assisted, was robbed by local gangsters.  He took out his gun, followed them out of his store and shot one.  Instead of being protected, he was arrested and charged with a serious felony.  In order to protect his family, this completely innocent hero was forced to pled to a minor charge.
 
What is going on here ?  One client was not protected because "undocumented worker" status trumped, he hates women and will hurt them.   In the next case, an Arab American, victimized repeatedly because his ethnicity made him vulnerable, is arrested because he used a gun to protect himself.

More on this later but all I can say is that in my office, basic human values are the only rule we follow. The person who works hard.  The person who is honest.  The person who is truly vulnerable.  These are our clients.  Sometimes we are "politically correct".  Sometimes we are not.  We never care.  We represent people and not a particular group.   We fight for liberty and justice.

Why Honest Chiropractors Find Themselves Under Investigation

I’ve been told by close friends in the District Attorney’s office that if I had not won my chiropractic MUA trial in Stockton, there were close to a hundred arrests of chiropractors ready to be made.

The chiropractic profession is extraordinarily vulnerable to attack both through criminal charges and billing disputes brought by the insurance companies.

The initiative which made chiropractic medicine lawful and equal to other types of medical practice, is becoming ancient and cumbersome.  Physician’s assistants can assist in surgery after very little real training compared to chiropractors.  Why is this?  The answer is simple. PA’s save insurance companies money by providing cheaper care than a primary physician.  A DC is primary physician (Worker’s Comp) / provider and DC’s, in general, seek to treat a patient on a more regular basis than a PA.  In short, DC’s are on the wrong side of the health care financial equation.

Insurance companies know that injured workers tend to seek help from chiropractors when it is the intention of the worker to go back to work.  As counter intuitive as this seems, most Worker’s Comp insurers would rather the patient be permanent, stationary, paid a few minor dollars and shunted out the door.

The cost of actually rehabilitating a patient is often far higher than the cost of putting them out to pasture.

The other vulnerability of DC’s is the science of chiropractic medicine.  While there are some high quality studies that show improvement with chiropractic care, it is hard to do double blind studies to prove that chiropractic works.

It is also difficult to identify a specific reason that adjustments work.  We can talk about the mechanical events that accompany an adjustment, but we cannot yet say why those events lead to a reduction and even resolution of symptoms and/or the condition itself.

Insurance companies know that a jury can be led to believe that chiropractic treatment is simply glorified physical therapy at a much higher cost.  The insurers have a stable of hired guns willing to say just that and the chiropractic community lacks the financial strength or political organization to provide counter experts.   Every time I’ve had to confront the prosecution experts I have been able to expose their bias and the lack of science behind their criticisms.

BUT …. over time, they seem to be getting stronger.  Like the Borg in the Star Trek movies, with each battle, they seem to learn, adapt and become more dangerous.

The insurance companies are also doing a better job of setting up the case before they bring it to the district attorney’s office.  The result has been a major increase in attacks on chiropractors for billing fraud, up coding, unlicensed practice of medicine and other fraud based allegations.

I represent chiropractors in many of these cases and so far I have been fortunate enough not to have lost one.  But,  DC’s have no organization that prepares counter attacks to the insurance industry.   Meanwhile the industry knows that even an unsuccessful prosecution causes massive damage to the accused and sends a chill throughout the profession.

In future articles I will discuss some of the early signs that you are being targeted and some of the preventative measures that you can take to protect yourself.

Divorce Law vs. the Rights of Crime Victims - Which Law Wins?

When I represented Oksana Grigorieva in her battle with actor Mel Gibson people sometimes asked, why is a lawyer known for criminal defense, representing opposing Mel Gibson in a child custody case ?  There were several answers.  First, we worked with a top Los Angeles family lawyer (Ron Litz).  Second, the case involved significant personal injuries inflicted when Mel Gibson battered Oksana Grigorieva.  That assault led to a massive battle where we sought to have criminal battery charges brought against Gibson and he sought to have extortion charges brought against Grigorieva.

Note: The battery (domestic violence / dv) charges were brought against Gibson and no charges were filed against Grigorieva.

This is where a criminal defense specialist was needed in a divorce case.  There are so many issues that arose.  For example, the California Constitution protects crime victims from having their deposition taken by criminal perpetrators. (Marsy’s Law)  The issue arose in the Gibson case this way.  Gibson’s attorneys wanted to depose Grigorieva to get the details of the assault.  They could then use the information to try to prevent criminal charges from being filed against Gibson and to gain information to present to police to have extortion charges filed against Grigorieva.

Since Gibson had not yet been charged, did Marsy’s law protect Grigorieva?  After charges were filed (and that no longer was an issue), another interesting issue arose.  Didn’t Mel Gibson have the right to take depositions on that issue (despite Marsy’s law) because that information was critical to his defense in the child custody case?

In my opinion, once criminal charges have been brought, there is no question that Marsy’s law bars any deposition, for any reason.  It is my experience that most Family Law attorneys are only vaguely aware of the protections of Marsy’s law.  The law is also very powerful in terms of getting financial compensation to the victim.  While Family Law cases focus on child support (and if there was a marriage, property issues), criminal cases provide for restitution.  Restitution is generally for financial losses (but in some instances emotional as well).  It is actually possible to get restitution awards in addition to the support and financial awards in a Family Law case.  There are strong arguments to support the proposition that a settlement of a civil case for battery / domestic violence does not settle (and therefore is not a bar to) a separate restitution award.

Also, restitution awards can be added to at least through the time that the person is on probation and I personally see no legal bar to seeking additional restitution at any time.  The only limitation might be that the new request must be based upon new injuries.  (But this point is also not settled).

I could write about this for a long time but I thought that it was worth putting on a blog, especially so civil (Family Law) attorneys can think about this issue and raise it when appropriate.

If anyone needs help in this area, please contact me at Horowitz@Whitecollar.us.  You can also call our office at 925-283-1863.

Daniel Horowitz, Attorney at Law     3650 Mt. Diablo Blvd.  Lafayette, California 94549                       (925) 283-1863