HealthLaw Blog | Martin Merritt

HHS Shutters Six of Ten Offices of General Counsel

Posted on September 4, 2025September 4, 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.

“In a one-lawyer town, the lawyer starves to death, until a second moves in. Then they both get rich.”—old lawyer joke.

No one despises the policies of the federal government more than a tin-foil hatted conspiracy theorist. (But standing right next to them— is me.) That doesn’t mean I don’t like fighting with the lawyers that work for the government. The ones in Dallas are very easy to get along with, or at least used to be.

But without a lawyer on the other side to fight with, I am basically just “screaming at clouds.” (Me and the guy in the tin-foil hat.)

In March the US Department of Health and Human Services announced the closure of six of 10 regional offices of general counsel, in Boston, New York, Chicago, Dallas, San Francisco and Seattle. The remaining offices will be in Atlanta, Denver, Philadelphia, and Kansas City.

According to the HHS website, “the Office of the General Counsel (OGC) is the legal team for the Department of Health and Human Services (HHS), providing quality representation and legal advice on a wide range of highly visible national issues.”

One assistant general counsel I spoke with last week, who is losing his job in the Dallas office, said “they have no plans to replace us, or move us to the four remaining offices.”

Why does this matter to Healthcare clients?

Let’s take “revocations” of NPI numbers, where providers can lose the ability to bill insurance (Medicare and Private), simply because they CMS wrote them a letter. You have to appeal to get it back.

I tried an NPI Revocation case in 2021 with a fully staffed OGC. HHS administratively revoked my client’s NPI for 10 years.

While the first level (DAB) lowered the revocation to 3 years, when we appealed to the ALJ, we didn’t get an answer for two more years, during which time, the doctor was not allowed to submit any claims to CMS. And this was with a fully staffed OGC. Can you imagine what will happen with 6 of 10 offices closed?

Okay, So what’s an NPI number revocation? A national provider identifier number is a way for the HHS to control doctors and providers. HHS can terminate the doctor’s ability to earn a living by writing them a letter, if the government is displeased in any of a growing number of ways listed under 42 C.F.R. §424.535(a):

Noncompliance
Provider conduct
Felonies
False or misleading information
Failing an onsite review
Misuse of billing number
Abuse of billing privileges
Failure to report
Failure to provide documentation
Reserve funds requirements
Termination from other programs, like Medicaid
Loss of DEA Certificate
Improper prescribing
False Claims Act Judgment
Debt referred to the US Treasury
Patient harm

A physician could continue to see patients, during the appeal of a suspension or revocation, but ordinarily must hold the claims until his NPI number suspension is reversed. Which, as I noted, took me two years to push an appeal through, when the OGC was fully staffed.

I have no idea how anyone is going to get any relief, if no one can have a hearing. I can “scream at clouds” all I like, but they generally don’t answer me back.

“Jennifer’s Law” Texas New IV Drip Bar Law Takes Effect Sept. 1st

Posted on August 28, 2025August 28, 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

So as not to bury the lead, Texas has a new law for IV Drip Bars that takes effect this Monday, September 1, 2025 and requires “elective” IV infusion outside of a doctor’s office or a licensed institution to be administered by at least a registered nurse, following a good faith exam and medical clearance by at least a mid-level, who has a delegation and supervision agreement with a medical doctor or doctor of osteopathy who is licensed in Texas and who exercises proper supervision.

The new statute is to be located in Tex. Occ. Code 172.001 (good luck finding it using Google, which told me “Texas Occupations Code §172.001 does not exist, and there is no Chapter 172 in the Texas Occupations Code.”

Then, adding insult to injury, the patronizing little shit told me, “the user may be confusing it with one of the following statutes concerning arbitration or political subdivisions . . .” But I know better than to trust AI (unless it is right). So, what the heck is this all about?

200 Years of Texas Medical Practice in 500 words or less. Originally, doctors in Texas were simply townsfolk who decided to hang out a shingle and practice medicine; often in exchange for chickens and farm produce. The first licenses were issued by the Republic of Texas’ “Medical Board of Censors,” starting in 1837. But it wasn’t until 1891, that the first medical school in Texas graduated its first class in Galveston.

Not that the delay in education mattered all that much. It took a while for people to trust doctors, hospitals and institutions, because we didn’t know what “germs” were. People were born at home and died at home, because people didn’t get as sick at home as they did at hospitals.

Medical science progressed rapidly, once we figured out what “pathogens” are, and more particularly, what kills them. We first began cleaning up surfaces in institutions (see Joseph Lister, the “Listerine” guy). Then Alexander Fleming noticed bread mold (penicillin) killed germs in both petri dishes and inside people.

Pretty soon, doctors were working miracles and defeating all kinds of diseases. People began trusting hospitals and doctors. There wasn’t as much to fear about a hospital or a doctor’s office, as in-home outcomes were no longer better than medical facilities. And doctors were the “heroes” of the hour. What could possibly go wrong?

“The dream failed to take power into account.” And so it was, the AMA and the Texas Medical Board (founded in 1907) were “living the dream” and enjoyed complete sovereignty over the practice of medicine.

Politicians were scared of the power of the AMA, so much so, they wouldn’t do anything to upset doctors. That is, until Medicare came along in 1965, and for doctors, sovereignty went to hell in a handbasket. (Any time you hear “government promise,” remember two words, “monkey’s paw.”) Here’s why. . . .

Paul Starr’s 1982 The Social Transformation of American Medicine, begins with one of the greatest opening lines of any book ever to win the Pulitzer Prize on the subject of American Medicine. (Okay, I looked it up, there are only eight books that qualify, so it’s not quite the brag I thought it was.)

“The dream failed to take power into account,” simply put, means that doctors thought they could accept government Medicare money and the government would leave doctors alone, because the government isn’t qualified to tell doctors what to do.

Where did doctors get this crazy idea? Because that is what the government statutorily promised doctors in the very first section of the 1965 Medicare law. Here, look:

42 USC §1395. “Prohibition against any Federal interference.” Nothing in this subchapter [Medicare] shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services. . .”

It isn’t that the AMA didn’t warn doctors of this “monkeys paw.” Ronald Reagan Speaks Out Against Socialized Medicine, is an AMA produced album, part of “Operation Teacup” (it’s in Wikipedia) that warns doctors that every aspect of communism will be imported through Medicare regulations. It sounded a bit melodramatically silly, but you can’t say they weren’t warned.

But, “on the other hand, money,” doctors said. “Besides, the government wouldn’t lie to us, they love us,” they said. “There would be hell to pay if Medicare officials crossed the AMA,” others said.

But, there was so much money flying around, with no consequences, that the AMA appeared ridiculous, and membership plummeted (from 75% in 1950 to 15% in the 2000’s). And that’s when the trap was sprung. The government began passing rules (like a monkey stealing your French fries, a few at first. Then, more.) Then all hell broke loose with Stark law and HHS OIG agents who began showing up to work wearing badges and guns like the FBI.

Finding that they could get away with it, CMS began stomping all over the “promise of federal non-interference.” They wrote so many rules, the Fourth Circuit described it this way in Rehab. Ass’n v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994) “Medicare and Medicaid statutes and rules are among the most completely impenetrable texts within human experience.”

All this regulation by the federal government led physicians, mid-level nurse practitioners and physicians assistants to hope to find another dream, a way to earn a living without accepting any insurance (Medicare is a kind of health insurance, just like private Blue Cross and United Healthcare, all of whom follow CMS rules.)

Then, as if by magic, smartphones developed cameras which face the user and “poof,” everybody is starring in their own movie (and they need to look good). MedSpas, IV Bars and all sorts of cash-only shops (a mash-up between medical practices and cosmetic beauty shops) began popping up, with little regulation as to precisely where “medical practice begins” when a customer plops down in a chair and says, “make me pretty.”

Pretty soon, IV Drip bars began advertising “bridal” packages, as a perk for bridesmaids, as much a part of the ritual as circus-tent taffeta gowns and bottomless mimosas.

In 2023, one such customer, Jennifer Cleveland, walked into a Med Spa in Fairfield, Texas, and received IV electrolytes without a medical exam, or medical clearance (probably without any real medical necessity), which was administered by an unlicensed person. There was also no plan for what would happen in an emergency. She died.

The Texas legislature then sprang into action the first chance it got, in 2025, as the Texas legislature only meets every two years (small mercies). The original bill attempted to regulate all MedSpas, but ended up only regulating elective IV therapy outside of a “medical practice.” (No definition of what that means.)

As I said, you can’t find the statute, Occ. Code 172.001 on a search engine, so you have to search the Bill number, House Bill 3749—known as Jenifer’s Law—signed into law on June 20, 2025.

“The Devil’s Advocate” How to Counsel Your Own Client

Posted on August 20, 2025August 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

Much of my practice involves a “sensible application of law,” to a “sensible set of facts,” culminating in “sensible advice,” to a “sensible client.” You might say, it’s the professional equivalent to “drinking an Ambien-laced, decaf, soymilk latte while reading a phone book.” And that’s just fine.

Other times, usually in response to an unreasonable demand, I get to “come out of my shoes” offering some “recreational suggestions” to opposing counsel and/or “the horse he rode in on.” (It’s the most fun a lawyer can have with the lights on. And under Rule 408, what we say in negotiations is not admissible in court.)

The Devil’s Advocate. But every so often, I have to play “Devil’s Advocate” with a client. It is where, if I am going to do my job, I have to “flick shit” on whatever stupid idea my client has in his head.

This is the reason I named this blog, “Please Tell Me You Didn’t. . .” (Because it is the thing I say most often to clients.) This is usually muttered under my breath, with a combination of the following protective body language: “chin on my chest,” “eyes squinted closed,” “one hand on my forehead,” “both arms covering my chest” with “one hand locked on my elbow.”

This is called “protective behavior,” because we unconsciously cover body parts that are most vulnerable to attack, even if the attack on our senses is verbal, and coming from our own clients. (Your brain is in your head, so we cover our heads, we need our eyes to see, so we squint, our necks have arteries, so our chins lower, our chests are where we keep our hearts and lungs, so we cover them and so on.) You could also cover your ears, but you would run out of hands.

The term “Devil’s Advocate,” on the other hand, originated with the Catholic Church, where it was a formal position, the “Promoter of the Faith,” responsible for arguing against sainthood.

It is the job of counsel, then, in playing “Devil’s Advocate” to “find the stupid” in a proposed course of action. In my practice, this can be a little bit like playing “Where’s Waldo,” in which a client paints an elaborate picture of his plans, and my job is to find the “little guy in the striped sweater,” representing “what’s wrong with this picture.”

Other times, anybody can see what the client is doing wrong. I just have to get through their thick skulls (and try to get them to promise to behave) which looks a little like administering this oath :

“I . . .[Answer: “I”]

“State your name. . .[Answer: “God’s own dumbass”]

“Promise” . . .[Answer: “Okay. . .”]

“Not to flush my career down the toilet. . .[Answer: But what if. . .]”

“The Case of the Amorous Therapist.” My old boss had one of the best (and simplest) ways of counseling us, when one of his lawyers came to him to complain about a difficult assignment, he would look at us incredulously and say, “this isn’t therapy, just do it.”

Clients are a little different, in that they are “paying customers.” In any other business, they are “always right.” While you don’t want to run them off, we are ethically obligated to put their interests ahead of our own, and that sometimes calls for telling them things they might not want to hear. (See also, “tough love.”)

Case in point, I had a psychotherapist who came to see me last week. She had developed “feelings” for a patient. She was 40, her patient was 24, who came to see her for “depression” and “suicidal ideation.”

I thought, “Please Tell Me You Didn’t. . .” (Well, of course she “did.”) That is when I also felt the urge, like “Dr. Strangelove,” to fight to keep my arm from reaching for my forehead. But, she had moved the patient to another therapist.

The problem, as she saw it, was “how best to continue the affair, while minimizing the chances the licensing board would throw the book at her.”

“Maybe I could give up clinical practice,” she said, “and switch to an administrative position.” I asked her what the patient did for a living. “He doesn’t work,” she said. I answered, “he’s cute as a puppy, isn’t he?”

She searched for words, but I cut her her off and I asked, “may I play Devil’s Advocate. . .”

She consented. And it went like this:

“You do realize that this kid, with his “James Dean, Rebel Without a Cause act,” intends to sit on your couch, under your roof, playing video games all day, while you bring home the paycheck? How long do you think that is going to last, if neither of you have a job? How long will this last if he doesn’t get a job?”

“But, he also has “emotional blackmail” material (“if you leave me I will . . .”) and “legal blackmail” material (“if you dump me, I will turn you into the licensing board”). While his parents might just do it the first, (or anytime) he complains to them about you.”

I then took a chance, and asked if my client had seen the episode of Parks and Recreation, with the “Tammy Deprogramming” scene (it is 3 minutes on YouTube), where Ron Swanson and Leslie Knope employ a “Pavlovian technique” to convince a coworker to break off a destructive relationship. (Ron sprays the woman’s perfume, “Girth,” in the guy’ face, while each time, Leslie slaps him across the face. . . until the bottle runs out.)

This bit of humor, which my client had seen, was just the break I needed to drive the point home:

“The question isn’t, ‘how can you do this and not get caught.’ The question is, ‘what the hell is wrong with you, that this affair sounds like a good idea?’ Someone needs to shove you against the wall, spray his cologne in your face and slap you until you come to your senses.”

Not everyone can get away with being as direct as I tend to be. But, the key to counseling, I believe, is to get permission to play “Devil’s Advocate,” and warn the client you are going to go as hard as necessary. “Do I have permission?”

If it gets too rough (more than the client can handle), remind them, “look, I am just playing devil’s advocate on your behalf, this is the way the licensing board (or whomever will administer the consequence) will treat you. “I am not doing my job, if I don’t point these things out for you to consider.”

It also helps to remember, it isn’t always going to work. We can’t control the outcome, we can only control our own conduct. Do the right thing, and pray it gets through to them. As my old boss would tell his lawyers, “It’s not therapy. Just do it.”

The Case of the Velvet Claws. A Remedy for “Social Media Burnout.”

Posted on August 15, 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

At the Tom Thumb grocery store near my house, there works a special needs kid named “Antonio.” I don’t know how it began, but if he is working, no matter how far into the store I have managed to make it, he will eventually catch up with me and give me a great big hug and ask about my day.

I don’t know which one of us gets more out of it (not that many people are even a little bit happy to see me, maybe that means I need more friends.) I just learned a long time ago, it’s best not to “question the magic.”

Questioning the Magic. Case in point, in 2019, Carson King, an Iowa State football fan held up a poster behind the national pregame broadcast which read, “Busch Light Supply Needs Replenished. Venmo Carson-King-25.” It was meant to be a joke. But, before he knew it, he had thousands of dollars in donations.

Carson then decided he would take $18 and buy a case of Bud Light, then donate the rest to the Children’s Hospital located on the campus of Iowa State’s rival, the University of Iowa. This is, if you haven’t heard of it, is the children’s hospital which overlooks the Iowa Hawkeye’s stadium. During Iowa football games, the fans stop, turn and wave to the children in the hospital.

Eventually, the story of Carson King’s generosity caught national attention. What started as a joking request for beer money, ultimately raised $3 million for the children’s hospital. (Sunshine, football and beer. What could possibly go wrong?)

Then (sunofabitch) somebody just had to “question the magic.” Somebody dug up a social media tweet, a 16 year-old Carson probably shouldn’t have tweeted. It reminded me of my sainted Mississippi mother would frequently shake her head, then mutter under her breath, whenever we kids destroyed something she kinda wanted to keep, “I can’t have nuthin.’’

As it turned out somebody on the internet (the kind that love to tear good things down) decided to see if they could find something a 16 year-old Carson King would come to regret tweeting, And of course if you go looking for the bad in people (we all have a “shadow self” according to Carl Jung) you will find it. In this case, it was a re-tweeted joke that the 16 year old Carson had seen on Comedy Central’s “Tosh.O.”

As a consequence, Anheuser-Busch had to pull its affiliation with Carson King and his support of the Children’s Hospital, so as not to offend the perpetually offended. This takedown came from the offended “left,” and seems something of a matching “bookend” with the Dylan Mulvaney Anheuser-Busch beer can putsch. Where people on the offended “right” were so outraged by a kid that looked like Audrey Hepburn, they literally started shooting their own beer.

As a defense lawyer, I don’t try to moralize about people doing stupid things. I just accept they will. But, I do come bearing gifts. Stop paying attention to social media and all those millions of posts just flow unnoticed, through an invisible sewer and harmlessly out into the sea of inconsequence, as if they never existed.

The Case of the Velvet Claws. In law school, I watched every episode of Perry Mason, one of the first-ever television shows, about a criminal defense lawyer, which ran from 1957-1966. I can’t tell you how much I love mid-Century nostalgia. Even the furniture. There is something safe about the past (just don’t “question the magic.”) I even have three very large, framed black and white prints from the Perry Mason TV show on my office wall.

But I never knew there were any Perry Mason “books.” Then I came across one in an antique mall, which was almost 100 years old, with yellowed pages so delicate, I was afraid to open it. I bought it for display and then went looking online for a copy I could actually read without tearing the pages.

Well, imagine my surprise, Earl Stanley Gardner wrote 78 full-length Perry Mason novels beginning with The Case of the Velvet Claws in 1933. With sales of 300 million books, Perry Mason books sales rank 3rd all-time behind Harry Potter and Goosbumps.

They are full-size novels, you can get them in any form you like on the internet, from decorative antique hard copies, original paperbacks, or a series of newly printed versions with art deco or mid-century artwork on the dustjackets. They are actually a fun read, even if you aren’t a defense lawyer. When I finish these, I might take up Dashiell Hammett.

If Perry Mason novels isn’t your thing, I bet if you give it a shot, you can find something to read, some grass to walk on, or some special needs human in a grocery store who needs a hug. (Just don’t question the magic.)

New York Times: “Where Have All the Men Gone?”

Posted on July 24, 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

At lunch Sunday with a friend from college who is in town working on the Paramount+ TV show Landman (starring Billie Bob Thornton, about the oil business in Texas) my friend said she said would be shooting this week at a restaurant called “Mr. Charles” on Knox Street, in Dallas. She didn’t know what kind of place “Mr. Charles” might be.

I replied, “yeah, that’s one of those way over the top, fancy restaurants women go in groups with each other.” It’s much like the one described in a New York Times article I had read July 15, entitled “Where Have All the Men Gone? We Miss You. Please Come Back.’”

This New York Times article really piqued my friend’s interest. So I told her the gist of it, which is that that the author of the article had noticed that at fancy restaurants, there are only groups of very nice-looking women and no men.

My friend wanted to know what a man’s take might be on this week’s version of societal collapse. And I am just stupid enough to wade right into this. (I am also actively trying to write my blogs in such a way as to make sure that I remain a solo practitioner, because no major law firm with an HR department, would ever be able to hire me after reading these things.)

This isn’t Schopenhauer. “If you want deep philosophical thoughts on the differences between the sexes, go read Arthur Schopenhauer, who was born in 1788” I told her. If you want my take, which is to say, if you want a side dish of “funny,” along with your stories of societal collapse, “I’m your guy.”

“First,” I told her, “asking either sex why the other is avoiding them, is a little like asking a school of undersized fish (who have no ability to conceptualize the meaning of words) why the fishermen keep throwing them back.” (Even if you told them, it is unlikely that they would have the ability do anything differently to change the outcome.)

But my best guess to the question, “why aren’t men at fancy restaurants anymore?” seems fairly obvious. “Men do not give a crap about fancy restaurants” I said. “The only reason we were ever there in the first place, is because women wanted us to take them there. If you remove that reason, most of us are going to be at home, or at sports bar.”

But my friend pointed out, “that doesn’t explain what happened to men going with women.” “Okay”, I explained, “I thought that was obvious. It started fifteen years ago with a phone that had a camera pointed at the user.” More particularly, the camera pointed at both the man and the woman forming the couple in the snapshot. “As the years progressed, you can’t help but notice,” I said, “that one of the two in the shot kept getting much more ‘photogenic’ than the other one.”

Coincidentally, just about this time, things like MedSpas, Botox and Lip-Filler centers started popping up. (Which forms a good chunk of my law practice) “Heck they even have places in Dallas,” I told her, “that only blow dry women’s hair. You don’t even get a haircut for your money.”

“Men can’t get all fancied up at a MedSpa like that, so we are kinda stuck the way we looked in 1990.” Which is a good thing, I continued. “If we bought a set of those fingernails, we would lose a pint of blood just trying to eat a sandwich.” (She thought that was funny, your mileage may vary.)

“Then, the final nail in the coffin of our being invited with you,” I concluded, ” came with this thing on your phone, out of the devil’s workshop, that that filters the images of groups of women.” (You really can’t do that with a guy in the picture.) So, women started shoving us out of the frame. “And we went home.”

This suddenly made perfect sense to a friend who earns her living in television. Oh yeah,” she said, “you men really do ruin our shots.”

We Need to Think about “Thinking” (And how smart phones are making us stupid.)

Posted on July 18, 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

Unlike lizards, which only have a lizard’s brain, we are capable of thinking about more than just basic survival instincts, like fight-or-flight. We humans have special “mammalian” brains, which integrate lizard-brain thinking within the neocortex to produce higher level thinking, which allows us to execute cognitive functions like decision-making and (“ahem”) self-control.

That is, unless something goes horribly wrong. According to one expert, it already has. The cell phone, and more particularly, social media feeds are making us act so stupidly, that we are losing the ability to act upon “lizard brain” survival instincts anymore.

I will show you what I mean. I received a call this week from a potential client who told me she “wanted to hire a lawyer to help get the medical board to go after her surgeon.” Okay, ma’am, “What form of malpractice did you experience?”

She replied, “he snatched my cell phone out of my hand while he was talking to me.”

Now, to put the picture in the frame, for those of you who are not health lawyers, and do not know technical medical jargon, a “surgeon” is a special kind of medical doctor, who makes incisions into your body and takes things out that are killing you. Or puts things in, which you more or less are really going to need if you want to live.

Here, I will draw you a chart up on the white board. On the left, we will put “people you no longer need to listen to.” (This would include ex-husbands and wives, etc.”) On the far opposite side we will write “suuuurgeons.” (I am elongating for emphasis).

This woman couldn’t put her phone down long enough to listen to her surgeon. (See also “Main Character Syndrome.”) A lizard would have better sense. But is she really this stupid? According to one expert, she might have been literally “brainwashed” by her phone.

Brainwashing. I came across a behavioral psychologist on YouTube, who works with law enforcement and the government at “HumanPsychEngineering.com.” He has the best theory I have heard, on why our smart phones make us behave so oddly.

Much like “psyops,” conducted by governments and organizations, our social media feeds know that we get an ego boost from being told we are “special,” “virtuous,” “a member of a group that supports something that matters,” “important,” “awesome,” “accepted,” a “victim,” or a “good person.” This can be especially intoxicating when mixed in our brains with our survival “lizard-brain thoughts (that there is an “enemy” or “something to be feared,” an “oppressor,” a “bad guy.”)

In short, our phones know how we think, and use this against us. Suppose you have just a passing interest in [“Thing X”]. Your phone’s algorithm quickly finds out that have an interest, and then “feeds” it to you. . . so often and so convincingly, that you will literally want to check on “Thing X” all the time– even if “Thing X” can’t possibly exist. It is a kind of “brainwashing.”

This happened to Patty Hearst in the 1970s when she was kidnapped by the Symbionese Liberation Army. Patty Hearst was the granddaughter of publishing tycoon William Randolph Hearst. During her captivity, she was brainwashed into joining in a bank robbery by members of the Symbionese Liberation Army.

There was just one problem, there is no such thing as “Symbionese” people, nor an army that needed to liberate them. It was complete fiction. Yet, these knuckleheads talked Patty Hearst, the granddaughter of one of the richest people in the world, into robbing banks to support a cause that couldn’t possibly exist. She spent 7 years in prison for it.

There is something to this, I think, that is worth exploring. Just based upon the way people walk around staring at their phones. They look hypnotized. But not everyone is susceptible to social media feed suggestions. Perhaps one third of people really get addicted to these things, one third are highly unlikely to find any interest is a news feeds, and the middle third are somewhere in between.

“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

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.