Another One Bites the Dust

A federal court has thrown out the core provisions of the Texas psychologist licensing law.  That law is almost identical to the laws governing North Carolina psychologists.

The plaintiff, Dr. Mary Louise Serafine, had completed a four-year post-doctoral fellowship in psychology at Yale.  Genetic Psychology Monographs published her Ph.D. dissertation.  She was a professor in the Yale and Vassar psychology departments.  Finally, she had a law degree from Yale. Despite these impressive credentials, she is not eligible for licensure as a psychologist in Texas because she does not have a doctorate from a qualifying program. 

Despite being unlicensed, she called herself a “psychologist,” taught seminars, and provided one-on-one patient counseling.  But it was not until she ran for the Texas Senate that she caught the attention of the Texas Psychology Board.  The Board ordered her to stop using the title “psychologist” and to stop providing “psychological services” in Texas.  Serafine sued the Texas Board arguing that its laws violated her right to free speech.

The appellate court agreed with Serafine.  I’m sure that her impeccable credentials had a big influence on the Court’s ruling.  Had she been a pedophile whose claims to be a “child psychologist” had lured hundreds of children to their deaths, the case may have gone the other way.

Serafine pointed out that the Texas statute gave the Board power to close down Alcoholics Anonymous, Weight-Watchers, self-help groups, life-coaches, yoga teachers, political consultants, and golf professionals.  Citing a recent case in which the Kentucky Psychology Board went after a newspaper advice columnist, the Texas Court agreed that licensing laws have been used to prohibit activities protected by the first amendment. 

The Court wrote “The ability to provide guidance about the common problems of life – marriage, children, alcohol, health – is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends.”

Recently licensing boards have lost many federal court cases throughout the country.  In 2013, a federal court threw out an attempt by the N.C. Board of Dietetics to stop Steve Cooksey, the “Caveman Blogger,” from giving dietary advice.  The courts also prohibited the N.C. Dental Board from regulating tooth whitening.  A Dental Board in Texas can no longer regulate advertising by dentists who claim to be specialists in areas not approved by the American Dental Association.

After the Serafine ruling, Texas began revising its psychology laws.  The next round of litigation will determine whether less restrictive licensing laws will survive judicial scrutiny.  If not, consumers may find themselves at the mercy of a legion of ill-informed advisors.

It is true that before the Internet, Americans relied on almanacs, grandparents, and friends for guidance.  They also innocently relied on “snake oil” salesmen who killed many with deadly potions.  To protect us from these dangers, every state in this country passed laws requiring training and monitoring of physicians, psychologists, lawyers, dentists and others.

While Grandma’s advice could lead the members of her family astray, Internet quacks can harm millions.  Courts will continue to balance the need to protect against these dangers with the need to allow free expression of ideas.  Hopefully, carefully drafted licensing laws can accomplish both goals.

Frozen Dead Guy

Our story begins in Norway when Bredo Morstoel died of a heart condition in 1989.  Shortly after his death his daughter, Aud, and his grandson, Trygve, decided to freeze him so that he could be revived if and when scientists discovered a cure for his heart ailment.  The pair shipped the corpse to a cryonic facility in California where it stayed for three years. 

Eventually Bredo’s kin decided to create their own cryonic facility.  Apparently Norway wasn’t cold enough so they came to Colorado, bought some land, built a primitive house, and brought in a Tuff Shed to house Bredo.  They stored him in a plywood box with foam and hauled in truckloads of dry ice to keep his temperature down.    

Because Trygve had overstayed his visa, the U.S. government deported him, leaving Aud to care for Bredo on her own.  Eventually, word got out that her home had no electricity or plumbing.  As this violated local zoning laws, the city fathers ordered her to leave the property.  Aud informed the city that her dad was frozen in a shed in the back yard.  She feared that he’d thaw out if she had to leave.  She also divulged that another man, Al Campbell from Chicago, was in the box with her Dad.  Al’s folks wanted Al kept on ice until a cure could be found for his liver disease.

All of this was too creepy for the leaders of Nederland.  They swiftly passed a law prohibiting the keeping of dead parts of any “biological” species, including but not limited to humans or animals.  They exempted “carcasses” of people who were buried in a cemetery or stored in a research facility.  They also allowed cremated ashes to be stored in residences. 

But the ordinance may be overly broad.  It literally prohibits hunters from mounting deer heads on the wall.  It outlaws displaying a stuffed owl or a prized trout.  Owning a mink coat or leather belt may be illegal.  As Trygve’s attorney pointed out, the ordinance literally prohibits homeowners from keeping turkeys and vegetables in their refrigerators.

Some local residents didn’t want to let the dead bodies go.  They formed a Freeze Tax Waste Committee to fight the law.  Meanwhile, Mayor Brown vowed, “I won’t allow this to be turned into a dog and pony show!”

Eventually, the pro-Bredo forces sold the town leaders on the idea that Bredo could help pump up the local economy.  Believing that thousands of tourists would want to come to Nederland to celebrate a dead guy kept in a backyard shed, they began working on a Frozen Dead Guy celebration.  The idea took off.  The festival is now one of the most popular in Colorado.

Each March, Nederland’s population swells with folks who gather to “honor” Bredo.  The celebrations include coffin races, a slow-motion hearse parade, frozen tee shirt contests, a “polar plunge”, numerous musical performances, a frozen turkey bowl, and a frozen fish toss. Tours of the Tuff Shed help fund Bredo’s maintenance.  There was even a movie titled “Grandpa’s in the Tuff Shed” and a sequel “Grandpa’s Still in the Tuff Shed.” Out of deference to the Mayor, there is no dog and pony show.

So, what happened to the ordinance?  Despite potential litigation from companies like Bird’s Eye, Green Giant, the National Taxidermists Association, and the Fur Information Council of America, Nederland has left the law on the books. Perhaps they’re OK with one or two frozen dead guys hanging around, but they may want to use the ordinance to keep out additional corpses. After all, they don’t want to be the site of the next zombie apocalypse. 

The Most Unlucky Doctor

Recently one of my clients became frustrated with me for insisting that he take several burdensome steps to comply with federal privacy laws. He argued that my fear of being sued in connection with a wrongful disclosure was paranoid. Clearly, he’d never heard of the Shipley case.

In 2005, a New York high school student died of injuries sustained in an automobile accident. The next day, a medical examiner performed an autopsy during which he removed the boy’s brain and placed it in formalin in a jar. He labelled the jar with the teenager’s name and put it in a cabinet in the autopsy room.

About six weeks later, students from the teenager’s high school happened to take a field trip to the mortuary. During a tour of the autopsy room, some of the students saw the jar holding their friend’s brain. Horrified and upset, the students notified the boy’s family.   The family sued the medical examiner and the jury returned a $1 million verdict. After many years of legal wrangling, the appellate court threw out the verdict and the family’s complaint. Because one judge dissented from the majority ruling, the case may yet continue.

I’m not trained in the science of probability. I don’t know how many times that mortuary gives tours. I don’t know how many students participate in the tours or how many schools in the area send students on these tours. Yet, I’m pretty sure that it was extremely unlikely that a group of students from the deceased’s high school would visit the very room in the very mortuary where their friend’s brains sat in plain view in a jar on which a physician had legibly written the boy's name.

I’d bet that the doctor in this case has changed his method of storing body parts. Probably, like me, he’s become hyper-vigilant about such matters. Are we both paranoid?

A nationally known psychologist who treats attorneys recently said, “It’s not your imagination that someone is out to get you all the time.” He claims that lawyers experience “justifiable paranoia.” Is justifiable paranoia a mental illness? If the paranoia is “justifiable,” should it be treated? Does the public want lawyers who aren’t concerned about serious, but unlikely, potential problems?  

Do lawyers, like other professionals, have an obligation to warn of remote but serious risks? For example, do you want your doctor to give you a pill for a minor headache without telling you that there’s one chance in a million that it will kill you? Don’t you have the right to make an informed choice about your medications? Who is going to bear the consequences if your luck runs out the moment you take that pill? I’m sure that the doctor and the drug company will be upset, but for you it’s the end of the line.

A couple of years ago, a dentist attending one of my legal workshops spoke with me during the break. Shaking his head, he said, “I told my partners that our documentation was inadequate. I told them that if we were sued, we wouldn’t be able to defend ourselves. They told me I was stupid and that in all the years they’d been in practice they’d never been sued. They refused to change anything. Well, we were sued and we lost big time. Who’s stupid now?”

Because I hear and read about these types of experiences constantly, I will continue to warn folks of the unlikely but costly result of ignoring legal pitfalls. Am I paranoid? An alarmist? Perhaps Clint Eastwood asked the better question in Dirty Harry.  As you look down the barrel of this .44 Magnum, the most powerful handgun in the world, you've gotta ask yourself one question: “Do I feel lucky?”