HealthLaw Blog | Martin Merritt

“No One Owns SMU – Southern Methodist University vs. United Methodist Church

Posted on July 2, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

Sitting across the table from a client who had just been indicted in a “misunderstanding” involving tens of millions of Medicare dollars, which the government termed, “healthcare fraud,” it occurred to me that my inner voice frequently sounds a lot like John Cleese.

The client unblinkingly told me that although he wants me to represent him, he . . .(oh, how did he put it?) Oh, yes, he doesn’t “have any money.” I began to explain that’s not “how it works,” but he had the answer. I could just put it on his tab.

That’s when my inner voice (the one that sounds like John Cleese) asked in one of Cleese’s over the top inquiries, “you do know you have been indicted for fraud. . . which I hastened to point out, in a general sense, would include lying about a promise to pay someone money.”

People do all kinds of things that don’t make any sense. It would seem to me that any money-making plan, which carries a 10-year federal prison sentence, at least if you get it wrong, isn’t worth the risk if you end up just as broke as if you hadn’t done it in the first place. (It is better as gallows humor, if you say it like John Cleese.)

SMU vs. South Central Jurisdictional Conference of the United Methodist Church. And speaking of things that don’t make any sense, I read with great interest, a Texas Supreme Court decision delivered three days ago, which points out something a first-year law student would know, “no one owns a non-profit.” Which is somewhat of a sticking point for many of my clients who wish to form 501(c)(3) non-profit organization—you can never sell it if it is successful.

So, here’s what happened. Founded over 100 years ago, SMU’s articles of incorporation reflected that it was owned by something amounting to the United Methodist Church. Around 2019, SMU and the United Methodist Church had a falling out over how unpleasant Jesus wants them to be to non-heterosexuals. (I am paraphrasing here.) So, SMU amended its articles of incorporation to cut the United Methodist Church Conference out of the “ownership and control” parts of the articles of incorporation, a kind of contract, which had existed in some form or another for 100 years.

This is the part that interests only the dullest people at any social function (a/k/a, transactional lawyers). While no one owns a non-profit (SMU doesn’t have shareholders nor “members” who own “equity”) it must be controlled by people (that is in fact one of the requirements in forming a non-profit.)

If SMU has a contract, or articles of incorporation that look as if they were written by a child (in that the contract calls for the one thing a non-profit like SMU cannot have, “owners”) what do we do about the rest of the contract that isn’t illegal, the part which calls for “control or management?”

The Texas Supreme Court first discussed in its opinion whether the courts should get involved in matters of religious doctrine. (This reads like the argument in the 1975 Monte Python movie, Life of Brian, in which John Cleese and Eric Idle can’t remember if they belong to the “People’s Judean Front” or the “People’s Front of Judea.” (One is their hated enemy, but they can’t remember which one they are.)

This all ignores that the Bible is replete with references that all things belong to God, we are just stewards of property. Psalm 24:1 declares, “The earth is the Lord’s, and everything in it, the world, and all who live in it.” This verse, along with others in Exodus 19:5, Deuteronomy 10:14, Job 41:11, and 1 Corinthians 6:19, highlight that God created all things and therefore has rightful ownership. In the Old Testament, Leviticus 25:23 emphasizes that the land belongs to God, and people are considered sojourners and tenants.

(Sometimes, it is best to just go to our rooms while mommy and daddy are fighting.)

SMU argued that because a non-profit cannot have owners, then necessarily, the non-owners lack standing to enforce a contract which treats the Church Conference as “owners.” The Texas Supreme Court agreed with the part that SMU doesn’t have “owners,” but that the formation of a non-profit is a type of franchise contract between SMU and the people of the state of Texas. (When a non-profit dissolves, the state attorney general usually takes possession of any assets.)

Ultimately, the Texas Supreme Court held, and this is the part that will make you the life of any party, ruled that it doesn’t have to decide. The Church and SMU can continue to fight about whether it is third-party beneficiary and therefore might have some right to sue to enforce the SMU articles of incorporation or bylaws. In sum, contracts can sometimes give people rights, usually where a contract specifically grants them, even though it gets many other things wrong and misstates their status as “members.”

Ancient Roman “Virtues”

Posted on June 25, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

As a lawyer, it is my job to be disagreeable, but one thing I have learned over four decades and I mean really sticks out, is that I don’t have to be unpleasant to be disagreeable. I have disagreed mightily over the years with many lawyers and judges, sometimes in highly animated fashion. But when I see old adversaries now, I appreciate them like kindred spirits. I am also very happy they aren’t “dead yet.” Arguing for a living only works, if it doesn’t kill you first.

“Click bait” (So easy, a toddler can do it.) These days, social media podcasts are filled with videos of people who perform “bickering” rituals with each other. Could be a husband and wife, could be police vs. protesters. Like a train wreck, it is hard to look away, and if you aren’t careful, the algorithm will start to feed you a steady diet of them.

The critical thinking part of my brain, does make me stop and ask a couple of questions. In the case of Husband v. Wife, which is supposed to be a unscripted private argument, “if this is a real argument, who’s filming it?” And in the case of very public protests, “if no one were filming it, would there be a protest?”

There is an old saying, “you show me how a person is rewarded, I will predict how they will behave” (or misbehave). At least in the short run. At the heart of it, people have always made money broadcasting melodrama. Social media has simply lowered the barrier to entry. You don’t need to own a TV station to get your bickering out to millions. All you need is something people can’t look away from.

We have new terminology for this phenomenon. First, there is “chasing clicks” or “click bait.” Simply put, “bickering sells.” Then there is “virtue signaling.” As every toddler knows, it can manipulate its parents more easily, if it throws a fit. Even better, toddlers will train parents that they are “good” when they gratify what the toddler wants, and “evil” when they frustrate the toddler. (“Resistance is futile.”)

Psychological “splitting.” Psychologists refer to this “good vs. evil” manipulation tactic, as “splitting.” Babies (real ones, not the ones on TV) can’t tell whether the thing they want is a matter of life and death. They are babies, after all, and don’t know what the rules are yet. Toddlers engage in “emotional blackmail” by simply demanding everything with equal vehemence.

But by the time our children are teenagers, you should be able to ask them, “you do know that you aren’t going to actually die,” if you don’t buy them the thing they want.”

But being the adult in the room means knowing something the toddler doesn’t. It is a parent’s job to teach children there are boundaries in place for a reason. Babies grow up. It isn’t good if everybody throws a tantrum to get what they want. Sure, you might get what you want, but no one likes to be around a full grown “infant.”

“Making a spectacle of yourself.” But we will watch people bickering childishly on social media, just for entertainment. We will also watch videos of a group of vegetarians’ virtue signaling through a bullhorn outside a sushi restaurant. (It’s perhaps an odd thing, to do something so futile, with such enthusiasm and vigor.)

My mother used to call this “making a spectacle of yourself.” (She had a Mississippi accent, and would frequently call us “heathens” who were going to hell when we misbehaved.) But now we can visit other people’s hell with a “click,” which at least makes some entrepreneurial sense. And I think there is some comfort in knowing our lives aren’t that messed up (after all, we can click out of hell, any time we want.)

But is it good for us to watch this behavior? “Monkey see, monkey do” is a scientifically proven fact, I bet I could find at least 9 out of 10 anthropologists on a podcast to agree.

The Roman Virtues. The ancient romans didn’t have smart phones, so they spent a lot of time “touching grass.” (I learned that term somewhat ironically, by watching YouTube.) Here is what Romans came up with a couple thousand years ago as aspirational goals in their free time (when they weren’t pillaging neighboring states):

Pietas. This virtue encompassed a wide range of duties and obligations, including respect for family and fulfilling obligations to others.

Virtus. Moral excellence, including valor, and self-worth. It was seen as a key aspect of Roman character.

Gravitas. This virtue emphasized seriousness, dignity, responsibility, and moral rigor. It was associated with the ability to make weighty decisions and act with due consideration. In other words, being the “grown up in the room.”

Prudentia: This is where we get “jurisprudence.” Involves foresight, wisdom, and practical wisdom in making decisions. It was a crucial virtue for leaders and individuals alike, enabling them to anticipate potential problems and act accordingly.

Severitas. This virtue involved self-control, discipline, and sternness. It was seen as essential for maintaining order and stability, both individually and within society.

Veritas. Veritas meant truthfulness and honesty in dealings with others. It was considered a fundamental virtue, and Romans believed that living an honest life was essential for virtuous living.

Constantia. This virtue emphasized perseverance, endurance, and steadfastness in the face of adversity. It was highly valued as a quality that enabled Romans to overcome challenges and achieve their goals.

In conclusion, while it is not always possible to play “nice in the sandbox,” we probably should be cautious about normalizing bad behavior. George Bernard Shaw said, “if you wrestle with pigs, you both get dirty, but the pig likes it.” (Even if you are just doing it virtually.)

Laredo Hides v. H&H Products How to keep juries from laughing at your shoes.

Posted on May 17, 2025May 19, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

“Toto, I don’t think we are in Kansas Anymore.” The very first day of law school in the 1980s we were presented with a case, which all first-year law students must master, Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210 (Tex.App– 1974). I think they do it to shock first year students, as in “we are in a whole new universe.” There could be no greater distance separating the need for a “1L” to learn confusing terminology like “requirements” and “outputs” contracts, from the question normal people might ask, “why would anyone give a shit about cow hides when it isn’t 1880 anymore?”

In Texas, where I am now sitting, cowboys used to find cattle roaming in the southern plains. (We have a lot of cows here.) In the early days, cowboys had to drive cattle on the Chisolm trail to Kansas, where the nearest meat processing plant was located. Then, railroads came to Texas and processing was done in Fort Worth and eventually, Laredo, on the Mexico border. This left a whole bunch of cow hides lying around Texas, from which saddles, handbags, and shoes are made. And that’s where the Laredo Hides case came from.

If any of this animal cruelty makes you squeamish, take comfort, even Louis Vuitton has a factory hidden away in Alvarado, Texas (so “suck it” France). Louis Vuitton purses, shoes and luggage are made out of some indestructible fabric that likely fell from outer space, but it isn’t leather.

So, who gives a crap about cow hides? Answer: “Juries, that’s who.” It matters how professionally both the lawyers and the clients present in court. If I am defending a doctor in a medical board hearing or malpractice case where the allegation might be some version of “he did a sloppy job,” or kept “sloppy medical records,” the first thing I do, is look at his shoes. Does he look like a slob? If so, we have to work on that. This isn’t a moral judgment. It is a thing called, “I don’t want to lose.”

Most juries have absolutely nothing better to do in a trial than make fun of the appearance of anybody who walks in the door. (If you were paid $7 a day, you would too.) And a primary issue for the jury to decide often is, “is this person squared away?” I am also made to understand that women are particularly hard on other women, although I am just parroting these words. I understand as much about women, as a horse understands about a Shakespeare. (I care, I just don’t know what to do about it.) But there are some things I do know about.

Things an old lawyer would know (that might keep juries from laughing at your shoes). First, know what a “shoe tree” is. If you want to make lace up or slip-on shoes look like crap, just wear them. The tops will bend out of shape and stay that way, all by themselves.

A shoe tree should be called a “shoe straightener.” Shoe trees are cedar blocks of wood that are shaped like the inside of a shoe. Their purpose is to keep the tops of shoes from getting all bent out of shape and “wavy.” I have shoes that are 20 years old that are as smooth on top as the day I bought them.

I don’t think women’s high-heels have shoe trees. I have never seen a high-heel shoe tree. (Either that, or women have secrets I am not allowed to know. And I am fine with that.)

Use shoe trees immediately when you take your shoes off. It is the moisture and heat that bends shoe leather. If leather dries wrinkled, it stays that way. Once the shoe dries, the shoe tree isn’t needed anymore. You can remove it. So, you only need a couple of shoe trees in your closet, once dry, shoes will stay straight until you wear them again.

Next, know what shoe “edge dressing” is. (The edge is the next thing that will go to hell on a shoe.) The edge of the sole of a shoe is the part that you are trying not to kick into a concrete curb, or into a metal thing sticking out of the ground that wasn’t there the last time you looked (but somehow manage to kick it anyway). Edge dressing is usually brown liquid with a cotton dauber, that paints the edge dark again.

Next, in the succession of things to keep shoes looking new, is cleaning, conditioning and shining. There is a difference between shoes that are meant to be shined, versus cleaned or conditioned. Some leather shoes come “shiny;” those are meant to be “shined.” Others, like suede, are only meant to be cleaned. In the middle, there are the more natural finished shoes, that look like a baseball glove, that are usually only conditioned regularly and maybe touched up with a conditioner mixed with a little color.

There are YouTube videos on all of this, which will teach you how, but “conditioner,” sometimes, this is called “shoe cream,” looks like body lotion and is designed to keep shoes (and purses) from drying out and cracking. When shoes and purses get dried out, they turn an ashy white or gray and look “tired.” You don’t need much of this to work. Sometimes, shoe cream can be mixed with pigment, to add back color that has worn off. (YouTube will tell you how.)

Shoe Wax is used to make shiny shoes look shiny again. Usually, you apply some wax with a bit of water and buff it off to make the shine come back. Repeated applications makes more of a shine.

But, some shoes can be shined like a mirror. If you have a pair of shoes that can hold a shine, and you really want to see your reflection in them, there is a thing called “mirror gloss.” I bought some from a company in France called “Saphir.” (YouTube told me they were the best.) You only use mirror gloss on the toe or heel of a shoe, however. What makes mirror gloss shiny, also would crack, if you put it in the part of the shoe that bends.

Finally, suede should only be cleaned with a wire brush or using special cleaner made for suede (and then, only after you are sure you have watched enough YouTube videos to give it a try.) The most important thing with suede, or other fabric shoes, you must clean the entire shoe in one go, not just a spot. (When staining wood, for example, this is called keeping a “wet edge.”) Otherwise, you will get a water line mark where the wet and dry parts meet, like a water mark on the brim of a golf hat. Use a brush, not a sponge or cloth, to put as little liquid as possible on a sued or cloth shoe.

At any rate, for more on all of this, Watch a few videos on how to do it, and you will be a pro in no time. And juries will have to find something else to laugh about.

Artificial Stupidity The Disappearance of the Texas Administrative Code (I may have to put it on a milk carton)

Posted on April 1, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

I have enough “organic stupidity” frustrating my every turn, I don’t need artificial robots inventing more. Two days ago, I wrote a blog with the Question:

“Where did the Texas Administrative Code Go? I was happily enjoying my favorite Sunday activity, preparing to answer a Texas Medical Board Complaint, when I discovered I can’t Google Texas Administrative Code Rules anymore.”

I am thinking of putting the disappearance on a milk carton. Google uses some kind of AI algorithm to produce a short answer to any question (which is what my doctors sometimes tell me they do when a patient shows up with a set of symptoms they have never seen before, they Google, “what the hell is this?”)

As I admitted two days ago, I do have Westlaw, I just don’t put it on my phone, because Google is easier when I am driving to court with a cup of coffee in one hand, a donut in the other, and the steering wheel between my knees. (Okay, that’s a “me” problem.)

Google used to be perfect for pulling up the text of a medical board rule. But since this weekend, when it comes to administrative rules, such as Texas Medical Board Rules, they have disappeared from any result you get when you Google it. The answer is “artificially stupid.”

When you Google a rule (either by rule number, “22 TAC 165.1”) or by the language in the rule “MEDICAL RECORDS” which is Rule §165.1) the results don’t link to the rule anymore. You get a notice that you will be redirected to a page that you can search, but the results say there “are no results” for a rule I know exists.

It gets worse, though. It used to be that after the short Google AI answer and paperclip link to the Texas Administrative code (which doesn’t work anymore), Google would list links to the text of the actual rule, from services such as West Case Text. But now, the Westlaw links say:

“This service is no longer available, but we appreciate you being a part of it. For legal research, please visit Westlaw, and if you’re curious about legal AI, check out CoCounsel. Thanks for stopping by!”

I have found a work around! Cornell Law School still works. If you add “Cornell” to the search “22 TAC 165.1”, you get the same old reliable answer as always and the text of the rule pops up without buying Westlaw.

Strangely, if you search Statutes, the old way still works. Just Google “Tex. Occ. Code 157” and the statute pops right up, just like the rules used to do. You can hit CTL + F and find the exact word you are looking for. But not with the Texas Administrative Code.

How the Grinch Stole Spring Break

Posted on March 25, 2025March 26, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

I don’t travel for “fun.” I honestly don’t think I understand how either one works anymore, (“travel” or “fun.”) I just go where business drags me, and last week, it was Miami Beach.

The Grinch. Sitting in a suit and tie on a hotel balcony overlooking the blue ocean, I was waiting to testify in a $36 million federal criminal healthcare fraud trial. I began to wonder if I was going to get called at all.

Checking my phone was a “coin toss” of sorts: “Heads, I go to the beach; Tails I go get cross examined by a federal prosecutor.” I am not sure which a Grinch like me would prefer. This was, after all, Spring Break, in Miami. (Grinch’s don’t like “fun,” especially “other people’s.”)

“The Who’s Down in Whoville liked spring break a lot!
But the Grinch on the Fontainebleau balcony, did not!”

Then I began to wonder, “where was the noise?” I opened up my phone to discover that Miami Beach had run spring breakers off, using a combination of curfew and DUI checkpoints.

Now, although this is a little like putting burglar bars on your windows, it won’t stop spring break from coming, it will move “Whoville” down the road to Ft. Lauderdale. (And that’s a “them” problem.) A slight “Grinchy” smile came over my face.

Then, a “fresh hell.” I was just settling into my Grinchy happy place, contemplating my good fortune, and that’s when fresh hell came wafting through the door of the connected suite. The unmistakable noise of a beast more “beastly” than spring break: a bachelorette party.

I don’t know much about bachelorette parties, but apparently, “screaming” as if at a Beatles concert, as each one arrived, is a mandatory form of greeting. I thought to myself:

That’s one thing the Grinch hated most of all!
NOISE! NOISE! NOISE!

I went out to check in the hallway, and found some of the girls, about 25, to be the nicest, happiest people you would ever meet. So, I slinked my Grinchness back to my room. (Seems it is hard to stay mad, when we are forced to humanize our “tormentors.”)

Human Irritant. The day bed I had reserved was wonderfully “spring-break free.” But another infestation of human irritant had set up camp right next to me, a bikini photo shoot.

I just shook my head in despair, and tried my best to channel Billie Bob Thornton’s character in the Paramount Plus show, Landman, “Oh, you’ve gotta’be shittin’ me.” It isn’t that I don’t like swimsuit models, it’s just that me paying attention to them, would be like my 20 year-old self dreaming of Ferrari’s. (I don’t hate myself enough to put myself through that.)

Besides, it wasn’t the models, it was “the cameraman,” yelling incessant directions against the sound of crashing waves at the models and overshooting the mark. The noise resonated through my ear holes, then travelled down my Grinch spine.

The Flight back from hell. We boarded the American Airlines plane from Miami at 3:30 p.m. Well, it was supposed to be at 3:30 p.m. We were all in our seats, ready to takeoff, when the captain announced, “we are having a little maintenance issue,” please stand by.

Considering that planes are flipping upside down nowadays days, I began the delay 100% on the side of “let’s not rush the maintenance.” I did discover, however, as the delay ticked by, I could be “flexible” on this point.

Then the captain announced, that we needed to change a tire, “should take and hour,” he said. “We will be back in the air in no time,” he said. But. . . we have to pile “off the plane,” he said.

It is apparently not a good idea to jack up a passenger jet with people inside. (Maybe they could have checked the tires before we got on, but I don’t really do airplane maintenance.) I amused myself with the idea that it would have been hilarious if a “AAA” truck pulled up on the tarmac.

But after we were told that maintenance had brought a new tire, but forgot the tools, I thought about calling AAA myself.

“Fair enough,” we passengers all seemed to decide together. But “fair” is also relative to “space and time.” I think Einstein said that. We all stood there at the gate, for four hours, as we watched out the window, as the maintenance crew stood around looking at the tire and doing nothing, waiting for tools.

We had to wait another 2 hours inside the airplane. The captain announced, they had to figure out how to turn on the machine that goes “ping”. (At least that’s the way I heard it.)

But, he “thinks the plane is safe to fly,” he said, but with less certainty than before. That was good enough for me, as I had completely surrendered at this point.

As I sat there, I looked at my family, who had just had the time of their lives at the beach. Then the rest of the passengers sitting peacefully in their seats, I thought, “maybe spring break means a little bit more.”

It was just then, I realized the Grinch was finally happy, flying 600 miles an hour away from any form of “fun” . . . and most of all . . . in total “peace and quiet.”

Valentines Day Thoughts From an “Unfrozen Caveman Lawyer”

Posted on February 14, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

Valentines Day. Well, here we go again, another Valentines Day. I don’t have a Valentine, but I do buy flowers for both ex-wives, half out of sentimentality and half out of the joy that comes from doing something nice. Life really isn’t that complicated, if you approach most encounters by asking, is a course of action “good or bad” for people you care about.

Then I sat down to write something thoughtful for Valentines Day, but realized, I have a big problem, I have no idea what “romance” even is anymore, let alone talk about your choices.

I was born in 1962, when the world was much simpler. We were hunter gatherers in my day, roaming the woods and fields looking for a red apple or berries. To a caveman lawyer like me, “binary” means, “Berries, good. Thorns, bad.” It follows naturally then, that “non-binary” means you can’t tell the difference between what is supposed to be good or bad.

Unfrozen Caveman Lawyer. I was warned of this, by the way 35 years ago, in a Saturday Night Live skit, “Unfrozen Caveman Lawyer,” where it was prophesied that I would wake up one day “frightened and confused” by what the hell is going on?

So it came to pass that the Super Bowl telecast aired last Sunday, and in the middle of it, a commercial popped on the screen entitled, “Your Attention, Please.”

The commercial begins with a bunch of bouncy cheerleaders and for most of the next 60 seconds, it is wall-to-wall video that would make a caveman happy. We see women’s upper torsos with music that encourages our caveman brains to believe that this is going to be a “fun, fun, fun, fun, fun” experience.

But even my unfrozen caveman brain has been trained that in 2025, “don’t look, it’s a trap.” And sure enough, like a wet blanket thrown at the phonograph needle, the video cuts to “Yikes! It’s Wanda Sykes,” talking about cancer.

What are we unfrozen cavemen supposed to think about this frightening and confusing commercial? Is “fun” bad? Is caveman bad? I feel like . . .

“The Jerk.” Then I remembered my caveman lawyer training, and I knew what to do. A popular movie from 1979, The Jerk has a scene where Steve Martin’s character is upset, he tells his boss that he is no good at his job as a carnival weight guesser. The boss laughs at him and lets Martin in on the fact that the boss makes money, no matter what, because the prizes are “crap” and nowhere near as valuable as the money suckers pony up to play the game.

Which leads Martin to an epiphany, “It’s a profit deal! That takes the pressure off!” With renewed energy, he gleefully begins hawking, “get your weight guessed right here. Take a chance and win some crap.”

“It’s a profit deal!” As a health lawyer, I deal with big pharma all the time. The game is designed to make big pharma’s stock go up. Maybe the point of the commercial is to frighten and confuse people so that they are talking about it.

Meanwhile, Novartis, the company who actually paid for the bouncy Super Bowl commercial, is a pharmaceutical giant which netted $45 billion in sales last year, and which will likely hope to become even richer if the commercial motivates more testing and more cancer is found.

And the world made sense again to my unfrozen caveman lawyer brain, “It’s a profit deal!” Just good old-fashioned corporate greed, sold to us wrapped in a nice package that might actually do some good, with the intent that half the cavemen in the country can’t look away, while the other half is wagging a finger at their cavemen for falling for it.

Meanwhile, a smart cavemen might step into another room, log into E-Trade (which is so simple a baby can do it), and buy some Novartis stock. Then sneak back in, and pretend to be “frightened and confused” along with everyone else by the strange pictures coming out of the television.

Oh, and “Happy Valentines Day!”

“The Unbearable Lightness of Being” (Life is too absurd not to be happy)

Posted on February 9, 2025February 10, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

I have been thinking about happiness lately, and how we could have more of it by worrying less. It seems to me that cell phones could be a main culprit, fueling a national obsession called “FOMO” (fear of missing out), which is all about needing to attain the supposed ideal, picture perfect life as a sine qua non of happiness.

This often centers on the pursuit of “stuff we don’t have.” Honestly, as a matter of historical perspective, we are doing pretty well. If you go take a look at Lyndon B. Johnson’s ranch 50 miles west of Austin, or Elvis’ house in Memphis, you will see that what was then the “lap of luxury” a few decades ago, looks so garish to the modern eye, that these homes seem at best like a cheap motel and at worst, as if the Scooby Doo Mystery Machine blew up in Elvis’ living room.

There is always some reason. Maybe that’s a good thing, there is always that “one little thing” we don’t have, or that is just out of reach, which is bugging the crap out of us, that makes us go out and strive, which is a way of having “fun.” The question is, “can you turn it off?” Which is a matter of perspective.

The Unbearable Lightness of Being.

When you think about it, the very fact that we can each enjoy a living breath, is so astronomically, intergalactically improbable, that might spend our time each waking morning just giggling our butts off that we are here at all.

It is a matter of gaining the right perspective. If we are going to do this, let’s go all the way out into space and look back at ourselves.

The Earth is a ball, and we are stuck on it, floating in temperatures that are so cold (negative 454.8 degrees) that we are living near “absolute zero,” where all movement stops. The only thing that keeps us from turning into freeze-dried popsicles, is that one certain nuclear explosion 93 million miles away, which for some reason, appears to us to be exploding so slowly, that it hasn’t changed much in several billion years. Either that, or God did it the way Genesis describes. (I am staying clear of that argument.)

This thing called “life” gets even more absurd, when you consider this nuclear explosion means the sun is throwing off radiation at the speed of light that would incinerate us like a pop tart left too long in a microwave, but for the fact that we somehow have an atmosphere which only lets the “good parts” of the microwave in. (Go figure.)

The only reason this protective atmosphere (effectively about five miles thick, so thin that Mount Everest practically pokes through it), isn’t blown off by the solar wind is that Earth’s middle is a spinning mass of molten iron, that creates a magnetic field that causes the solar wind to just “just go around.”

The fact that we are here at all is such and improbable gift, you might say we can only cheapen the ride by grabbing the wheel of our “worry wagons,” and frantically steering towards the latest Macy’s sale. (Or whatever is “real to you, dammit!”)

This was the essentially premise of Milan Kundera’s The Unbearable Lightness of Being, published in 1984. (Skip the movie, read the book) The book opens with an examination of precisely what I am talking about: the number of contingencies that had to take place on Earth, just for your parents to have met so that they could create “bouncing baby you.”

Viewed through the proper lens, we could “let go of the wheel” of most of our worry, and it wouldn’t make any difference at all. But, we probably should try to do the most good we can, for the most number of people.

Quoting Kundera from the book:

“The heavier the burden, the closer our lives come to the earth, the more real and truthful they become. Conversely, the absolute absence of burden causes man to be lighter than air, to soar into heights, take leave of the earth and his earthly being, and become only half real, his movements as free as they are insignificant. What then shall we choose? Weight or lightness? … When we want to give expression to a dramatic situation in our lives, we tend to use metaphors of heaviness. We say that something has become a great burden to us.

Stated another way, “Life is so absurd we shouldn’t even be here. But as long as we are, we need to have a ‘purpose,’ so we don’t go fluttering off into foolishness.” That is about as close to “happiness” as we can get.

Physician NPI Revocations (The “Hippies” were right! “Big Brother” is watching)

Posted on January 26, 2025January 27, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

A new “Rothschilds Conspiracy” has circulated every decade for at least the past 150 years. Usually, it has something to do with a mistrust of powerful banking interests, a public fondness for government conspiracies and in one a few decades ago, a supposed conspiracy fueled by general confusion over how a nascent thing called the “internet” would eventually come to oppress us all.

This new conspiracy (if 20 years ago is “new”) held that nothing bad would happen, as long as everything went well for the rich and powerful, as puppet masters of the government

But if certain people in society (at least the ones who were important enough to be under constant surveillance), didn’t obey their puppet masters, then an Orwellian “Big Brother ” bureaucrat would flip a switch and turn off an offending individual’s ability to get a job or buy anything.

This “Big Brother” concept is straight out of George Orwell’s 1984 (written in 1949, when 1984 was still a long way into the future.) In 1984, “Big Brother” only surveilled people who “mattered enough” to be worthy of oppression. Ordinary people, the “Proles” short for “proletariat,” who were the majority of society, didn’t matter enough to be watched.

This futuristic nightmarish scenario is in reality, what CMS and the government (working with powerful insurance companies), would call “a Tuesday.”

NPI Revocation Actions. Briefly, here is the procedural history. This week, I received a decision by the HHS DAB Appeals Board surrounding my doctor client’s NPI revocation case, which I had tried in 2021 to an ALJ in Washington D.C. (This timeline will become important later and I will tell you what my doctor did to get in trouble).

But for now, at trial, I was able to convince the ALJ to lower my client’s NPI revocation from 10 years (which had been imposed by CMS), to 3 years. Which we then appealed to the HHS Departmental Appeals Board, which issued the decision last week. That’s the history.

Your first question might be, “what the hell is an NPI number?” A national provider identifier number (NPI) is a way for the government and major insurance companies to surveil doctors to scare them into staying in line. Everything doctors do (that is covered by health insurance) must have a doctor’s NPI number attached. The government (CMS) can decide to terminate any doctor’s ability to earn a living by fiat, if the government is displeased in any of 14 ways listed under 42 C.F.R. §424.535(a).

I can tell you from experience, every doctor violates at least one of these §424.535(a) provisions a dozen times by noon every singe day when they bill insurance. My friend, Jane Orient, M.D., of the AAPS explains this in her book, Your Doctor is Not In!

One of the requirements for billing insurance, is that doctors certify compliance with “Stark Law” and the Anti-Kickback statute. After reading Stark law and the AKS, Dr. Orient wrote she couldn’t make heads or tails of either. Rather than lie and say she did understand it, she just turned her NPI number in and stopped taking insurance.

Why is this so scary? “Fear” is not a “defect,” but a “feature” of CMS’ Soviet-style plot. If doctors never know when Big Brother is coming for them (or what friend or neighbor might turn them in to the authorities), then the only way to stay safe, is not to do anything that might possibly anger Big Brother.

Consider too, the people at CMS who decide if the rules have been violated, the government attorneys who prosecute CMS’ decision, the expert witnesses who all work for CMS and testify against the physician, the ALJ who reviews CMS’ actions and the DAB Appeals Board which reviews the ALJ’s decision. . . all get their paychecks from the same HHS government agency . . . the agency which wrote the rules in the first place.

So, what did my client do to get in trouble? During COVID, when people weren’t coming to doctor’s offices, my client signed up with a telemedicine provider. Apparently, his NPI number was used on orders for Medical Equipment and Supplies my client doesn’t think he ordered. CMS requested the medical records and the telemedicine company couldn’t produce them. A failure to produce records is one of the 14 things that will get an NPI number revoked.

My argument was that the government had failed to prove an element of the case, that the patients ever belonged to my client. Just because his NPI number was used, doesn’t prove my client used it. He simply can’t fail to produce a record that never existed. And what CMS was really mad about, was the suspicion that the doctor was in out the suspicious billing. Rather that try to prove it, CMS just threw the book at him over bad record keeping.

Admittedly, my argument was little like arguing “my client was such a bad recordkeeper that the government can’t prove he is a bad recordkeeper.” So, the DAB did things the CMS way. It sat on the decision until the clock had run out on the ALJ’s 3 year revocation, until the third week of 2025 . . .a period spanning three presidencies, which effectively rendered the appeal of the 3-year revocation moot.

Sure, we can still go to the US District Court, where there are actual rules of evidence, but like Dr. Orient, by client has gotten disgusted. Which is why in 2024, you see doctors racing into cash only businesses like Medspas. . . .(to escape 1984.)

More HIPAA Rules for Lawyers “The Beatings Will Continue Until Morale Improves!”

Posted on January 18, 2025January 20, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

Cheeky Monkeys. It doesn’t take a genius to be a thief or even to hold what you’ve stolen for ransom. You can train a monkey to do it. Tourists at a temple in Bali, Indonesia are getting their valuables stolen and held for ransom— by long-tailed macaque monkeys who have learned to steal items from tourists, then negotiate a tribute in exchange for the valuable’s return.

You can watch it all on YouTube, as tourists walk by the temple and one of the monkeys grabs the tourist’s cell phone or sunglasses. The tourist must offer a treat to get the monkey to drop the merch. But, If a tourist offers too little, a banana instead of a Snickers, the tourist receives a growling rebuke. It’s all great fun and to be sure, the tourists do invite and cooperate in the criminality.

“With men we will get money, with money we will get men, said Caesar.” Which brings me to today’s topic, the US Dept. of Health and Human Services Office of Civil Rights (“OCR” or “HIAPPA Police”) have proposed new rules to blame management companies, lawyers and providers for not trying hard enough to stop cyber criminals from getting our private information.

First observation: as I have published before, the Office of Civil Rights doesn’t give one whip about your “civil rights. ” See “HIPAA and Medical Records Privacy, A Survival Guide for Texas Attorneys. 78 Tex. B. Journ. No 7., 540 July (2015). That’s just a “stalking horse” for the real intention, which is to try to protect government programs from financial thieves.

Second observation: There is also a line of thinking, dating back to Thomas Jefferson’s “Notes on the State of Virginia,” that federal agencies exist to expand power and tyranny, just like the old monarchs did. Give ’em a little power, they only use it to get more power:

“With money we will get men, with men we will get money, said Caesar.. .
It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”

“The Beatings Will Continue Until Morale Improves.” Let’s see how government “beatings” have been working so far. Regardless of the regulating agency, HHS or FTC or Treasury banking regulations, anyone with personal information has to “double pinky swear” to try really, really hard to protect it.

In 2024, healthcare data breaches affected 184,111,469 records, representing 53% of the U.S. population. With 703 large breaches reported to OCR. The largest breach occurred at Change Healthcare, affecting 100 million individuals through a ransomware attack that caused widespread disruption to healthcare services and medication access across the U.S. healthcare system. The year saw 13 breaches involving more than 1 million healthcare records each, with 11 caused by hacking incidents and 8 involving business associates of HIPAA-covered entities.

But, don’t worry (your data is already out there), so nothing we do will probably make any difference. (The “beatings” just make the OCR feel like they are doing something productive, like growing their own agency, when they don’t have a clue what to do.) While writing this, I received another Life Lock email, that 50 million college student records were stolen from something called “PowerSchool.”

This is but one of many alerts I have received that companies I have never heard of, have lost my private data. Previously, there were 855 million records leaked from mortgage giant, First American Financial, an Equifax data breach resulted in 147 million customer records stolen, Capital One had an event where where 100 million credit applications were stolen, and JP Morgan Chase, where 83 million accounts were stolen.

Final observation: I don’t think “trying harder” is working. This has gotten so ridiculous, I don’t’ think there is any point pretending that out data has any “privacy” left. That won’t stop the OCR from passing new rules to punish us until we “do better.”

The proposed changes include rules for both Covered Entities (like doctors and hospitals) and Business Associates (like lawyers and accountants) to do more training and report more on how much training they have been doing. This assumes the breaches are due to ignorance.

The word “sabotage” comes from the French word “sabot,” which is a shoe made of wood worn by peasants. Peasants working in factories, fearful they would lose jobs to technology, would deliberately use the shoes (sabots) to either kick machines or clog the gears, to prevent progress. See also, “Luddites.” Instead of a wooden shoe, today employees just need to click on an email from a Nigerian Prince.

I personally would like to see us use drones to drop electronic pulses on top of the bad guys heads, to fry their computers? (Might not work, but I feel better.)

Until then, the only way to protect ordinary people, is in on the back-end. Banks have gotten pretty smart about knowing when I didn’t buy Grub Hub in Amsterdam. I don’t want to know how they do it. . .(Just keep doing it!)

Why is Los Angeles on Fire? And other “Great Moments in History”

Posted on January 13, 2025 by Martin Merritt

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

I don’t post blogs with any deliberate political intention. I feel more like a kid caught in the middle when mommy and daddy start talking politics at the dinner table. Seems to me the biggest problem is that each side is reinforced by the television news which they “hate watch.”

The idea of TV news is to convince you your side is the “good guys” and anyone disagreeing you must be literally, “Hitler.” Which is just “bait concealing the hook.” (If you haven’t figured out, during the commercial breaks both Fox News and MSNBC play the same ad for the same big pharma product.)

But even as a little kid, I knew it was a big problem, when you turn on the faucet and there was no water. I can’t imagine how much worse it would feel, if your neighbor’s house is on fire and yours is catching and the fire hydrant doesn’t have any water. But that probably would never happen.

Why is Los Angeles on fire? Southern California has long had a problem, in that much of it is dry desert, with the San Gabriel Mountains standing in between the desert high plains to the east, with the Pacific coast to the west. Here the San Andreas fault and shifting tectonic plates cause the landscape to rise almost 10,000 feet, then drop quickly as it levels out to the sea. Hot air from the desert blows toward the sea, as it descends quickly down the mountains. This air mass lands on the coastal plane, which compresses the accelerating air, heating it up and drying it even further. The result is a big giant thermal leaf blower, with wind speeds up to 100 mph, known as the “Santa Ana winds.”

This effect is so predictable, that Californians have come to refer to this time of year as “fire season.” Arguing about what causes this is a little like Bugs Bunny and Daffy Duck arguing whether this is “duck season” or “rabbit season,” when the fire is literally coming down the hill. Its a bit too late.

Let’s say that climate change plays a big role in the danger from the Santa Ana winds. The question is, what do you do when you when you know Santa Ana winds are coming?

California’s stack of problems. California still has electrical wires above ground on 100-year-old poles, which rise only a few feet from dense underbrush that grows naturally in the hills. You can see where this might be a problem in 100 mile-an-hour winds.

Los Angeles county is the most densely populated in the country. They need water, lots of it. Because it is in a desert, that means no rain clouds. The brush in “them thar hills,” gets really dry. As a result, Los Angeles must pipe water in, which makes corrupt people rich, like John Huston in Chinatown.

California’s cloudless climate also attracts huge numbers of homeless people. Some are addicts and some are mentally ill. They can live on the streets in daylight, but deserts get cold at night, due to the lack of cloud cover, because clouds keep heat from dissipating. That’s where the dry brush is a godsend to the homeless. They make campfires in the hills out of dry brush at night stay warm. Which isn’t so much a problem, unless you live where there are 100 mile-an-hour winds.

California never buried the power lines underground, nor addressed the homeless. Instead they used to build zig-zagging fire breaks in the brush to stop these fires from spreading. California also used to build reservoirs to hold water, but like the Bugs Bunny episode, “Wet Hare,” environmentalists got the government to blow up their own dams because of wildlife concerns. I didn’t catch this when I was a kid, but Bugs Bunny, a wildlife creature, actually asks the industrialist, “what gives you the right to dam up the water?,” before tricking the bad guy into blowing them up himself. (Bugs, the environmentalist is so annoying, the industrialist will do anything to shut him up, including blowing up his own livelihood.)

Sometimes I think everything I needed to know, I learned in kindergarten. I am not sure on all of the problems in California, because instead of cartoons, we now get news from Fox News or MSNBC, who are really just trying to sell erectile function drugs for the sex that no one is having these days because of the stress.

“Great idea with the best of intentions, what could possibly go wrong?” So, instead, I watch YouTube channels, one of my favorite being, “Great Moments in Unintended Consequences,” which are three- or four-minute videos about moments in history when the government had a problem and their solution backfired.

In Episode 12, for example, in Texas “poopy” birds were congregating in the oak trees above the heads of doctors at a Texas Medical Center campus. So, administrators put up nets to make the birds go elsewhere. The narrator intones, “Sounds like a great idea, with the best of intentions, what could possibly go wrong?” It turns out, birds eat caterpillars, including North America’s most venomous, megalopyge opercularis, which grew in numbers by 7,300 percent. They can kill you. Unless the birds kill them first.

The moral of the story. If there is anything good to take away from the LA fires, it is this. Probably, we need to have a hierarchy of concerns. First, make sure that there is water in the tap, food on the shelves, electricity in our homes, doctors when we call for one, and fire departments with people who can carry a firehose up a flight of stairs. Everything else is important, but probably not a question of life or death. We are all just a few missed meals from total anarchy at all times.