I would not have thought such an attempt at abridgement of fundamental American rights could originate in a local hospital, until this Motion by the defense in the EHR-related lawsuit initiated by my deceased mother in which I am now substitute plaintiff proved otherwise:


The hospital was attempting to have the Court issue a Motion for Prior Restraint (http://en.wikipedia.org/wiki/Prior_restraint), including against my writings here in the Healthcare Renewal blog, in a civil matter.

In my view this attempt sets a very deleterious precedent for others opposed to hospital practices.  A topic frequently discussed at this blog is imperial management.  Hospital management seems to have now become so arrogant that it apparently believes itself to have supra-Constitutional reach.  This bodes poorly for both patients' and clinicians' rights. How many other hospitals might try this, and not just against parties to litigation, hoping to get a favorable ruling?

Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place.

Prior restraint is often considered a particularly oppressive form of censorship in Anglo-American jurisprudence because it prevents the restricted material from being heard or distributed at all.  Prior restraint ... takes an idea or material completely out of the marketplace. Thus it is often considered to be the most extreme form of censorship.

... most of the early struggles for freedom of the press were against forms of prior restraint. Thus prior restraint came to be looked upon with a particular horror, and Anglo-American courts became particularly unwilling to approve it, when they might approve other forms of press restriction.

Excerpts of plaintiff attorney's legal response are below (full PDF of this civil document is available at http://cci.drexel.edu/faculty/ssilverstein/Abington_Memorial_Hospital_PL%20response%20to%20DF%20motion%20for%20prior%20restraint.PDF).  The response was, in fact, largely right out of the U.S. Constitution.   It is stunning that a community hospital, allegedly a servant of the public, would pull the legal stunts described which seem more akin to the methods of the former Soviet Union:

... as the entirety of the blog describes, Dr. Silverstein was troubled with, and expressed his opinion that, the defendant’s counsel’s repeatedly advancing an argument [that the same attorney had made three years prior regarding a medical malpractice case in the very same hospital - ed.] that was soundly rejected by another court [related to Certificates of Merit that delayed proceedings in my mother's case for almost two years - ed.], and the defendant’s failure to reference that case in any substantive way as opposing authority, was, in his protected opinion, malicious and unethical. As above, Dr. Silverstein’s comments on the matter are, as defendant agrees, his beliefs, opinions and viewpoints, all of which are protected speech under the Pennsylvania and United States Constitutions; that defendant’s counsel is dissatisfied with protected speech is not a matter for this court to address.

I would expect the defendant's counsel was following the instructions of, or at least was in collaboration with, hospital counsel, hospital senior management and the healthcare system Board of Directors.

... Unhappy that their improper tactics are now being exposed through Dr. Silverstein’s opinions in his blog, defense counsel initially threatened litigation. Now they ask this court to enjoin Dr. Silverstein, via prior restraint, from expressing his views. This extraordinary request comes in spite of the defendant offering nothing but pure speculation as the foundation upon which they ask this Court to strip the plaintiff of his First Amendment rights.

... Their request to strip plaintiff of his First Amendment rights is at odds with the Constitution, the caselaw, and the realities of the jury selection process, which has multiple safeguards in place to remove anyone who may have read and been influenced by Dr. Silverstein’s writings. Importantly, because of the defendant’s procedural tactics, this case, while over two years old, has only just begun discovery and the jury section process is nowhere in the near future.

... The simple fact is that Dr. Silverstein’s blog contains what defendant recognizes are his “beliefs, opinions and viewpoints” and, as such, they are protected. Neither defendant nor its counsel can meet the strict requirements of their unprecedented request to strip Dr. Silverstein of his constitutional rights. Their Motion must be swiftly denied.

Dated: 28 May 2013

The court, a civil Court of Common Pleas in this county in Pennsylvania, in fact did promptly make a decision: hospital motion for censorship denied.

6/24/2013OrderOF 6/20/13 DANIELE,J MOTION IS DENIED; CCNo9343590

The First Amendment lives, at least in Montgomery County, Pennsylvania.

However,  as the stories aggregated on this blog and others increasingly show, hospitals' mission of public service increasingly seems to be dying.

Attempted use of courts to abridge First Amendment rights by a hospital seems like the pinnacle of abandonment of pretenses of public service and accountability.  Corporate interests come first, not patients. 

This is a reason I increasingly am of the belief that hospital management cannot be trusted.  Accordingly, in my opinion, patients - especially acute inpatients - should have 24x7, independent advocates following every aspect of their care, receiving a daily full printout of any electronic records generated, and (if legal) even using one of the many new, small video/audio recording devices in encounters with hospital personnel.

"He said/she said" is no longer an option when dealing with a Сою́з Сове́тских Социалисти́ческих Респу́блик mentality.

Click for Patriotic music!

Perhaps Abington Memorial Hospital should consider adopting the rousing music above for their HR morale-building exercises.

I was a Medical Resident there in 1985-87.  Like Lev Davidovich Bronshtein, I guess I've been excommunicated for failure of obedience to the Party line.

My old residency ID.  I've now been excommuncated.

Da Svedanya for now, Comrades!

-- SS

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