PERSUASIVE AUTHORITY Sources of law, such as related cases or legal encyclopedias, that the court consults in deciding a case, but which, unlike binding or mandatory authority (such as a relevant U.S. Supreme Court case), the court need not apply in reaching its conclusion. These materials’ degrees of persuasive- ness will vary greatly. Cases from outside a particular jurisdiction or circuit may be treated as persuasive author- ity, particularly if the legal issues as well as the facts are sufficiently comparable to attract the court’s attention or if the outside state has a particularly similar doctrinal leaning that per- tains to the case at hand. A series of specialized resources published by the American Law Institute, which are known as Restatements, can serve as persuas ive authority. They cover a broad range of areas such as agency, torts, contracts, conflict of laws, and property. Restatements analyze legal trends and nuances and provide legal recommenda- tions, and courts do cite them from time to time. Certain other writings (if sufficiently relevant) by certain legal scholars (if sufficiently distinguished) could also serve as persuasive authority. Thes e may include treatises or books, or academic law review articles. PETIT JURY The ordinary panel of twelve persons called to issue a verdict in a civil action or a criminal prosecution. Petit jury is used interchangeably with petty jury. PETIT LARCENY A form of larceny—the stealing of another’s personal property—in which the value of the property taken is generally less than $100, though this amount may vary by state and municipality. At COMMON LAW, the penalty for the offense was whippi ng or some other CORPORAL PUNISH- MENT . Under modern-day statutes, it is usually a fine, imprisonment, or both. CROSS REFERENCE Grand Larceny. PETITION A formal application made to a court or other official body in writing that requests action on a certain matter. The FIRST AMENDMENT to the U.S. Constitu- tion guarantees to the people the right to petition the government for the redress of grievances. Petitions are also used to collect signatures to enable a candidate to get on a ballot or put an issue before the electorate. Petitions can serve as a way of pressuring elected officials to adhere to the position expressed by the petitioners. The right to petition the government for correction of public grievances derives from the English MAGNA CHARTA of 1215 and the English BILL OF RIGHTS of 1689. One of the colonists’ objections to British rule before the American Revolution was the king’s refusal to act on their petitions of redress. The Founders attempted to address this concern with the First Amendment, which affirms the right of the people to petition their government. Almost all states adopted similar guarantees of petition in their own constitutions. Between 1836 and 1840, abolitionists col- lected the signatures of two million people on petitions against SLAVERY and sent them to the U.S. HOUSE OF REPRESENTATIVES. In the early twentieth century, states passed laws allowing initiative (the proposing of legislation by the people) and recall (an election to decide whether an elected official should be removed from office). California has become an example of a state whose laws have been affected by petition for ballot initiatives. The state has passed laws ranging from property tax limita- tions to a “three-strikes” law mandating life prison terms, as a result of petitions. Both initiative and recall processes start with the collection of a minimum number of signatures on a petition. Small political parties often use petitions to collect signatures to enable their candidates to be placed on the election ballot. Petitions are also directed to courts of law and administrative agencies and boards. A petition may be made EX PARTE (i.e., without the presence of the opposing party) where there are no parties in opposition. For example, the executor of an estate may file a petition with the probate court requesting approval to sell property that belongs to the estate or trust. In contested matters, however, the opposing party must be served with the petition and be given the opportunity to appear in court to argue the merits of the issues it contains. A prisoner may file a petition for a writ of HABEAS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 488 PERSUASIVE AUTHORITY CORPUS, in which the prisoner requests a hearing to determine whether he or she is entitled to be released from custody because of unconstitu- tional or illegal actions by the government. The prisoner must serve a copy of the petition to the government office that prosecuted him or her. The writ of habeas corpus, like many other types of writs, is discretionary; the court is free to deny the petition. Other examples of petitions that can b e filed with a court include a CERTIORARI petition, which seeks review of a lower court decision by an APPELLATE court; a petition for probate, which asks that a will be admitted to probate; and a petition for access, which allows some- one to examine a patent court application. BANKRUPTCY courts feature both voluntary petitions, seeking relief from creditors, and involuntary petitions, seeking to declare a debtor bankrupt. PETITION IN BANKRUPTCY A document filed in a specialized federal court to commence a proceeding to provide a means by which a debtor who is unwilling or financially unable to pay personal debts will satisfy the claims of his or her creditors as they come due. There are two types of petitions in BANK- RUPTCY cases. A voluntary petition is filed by a debtor who wants to make arrangements for the payment of debts and be relieved of liability for them. Vol untary petitions are governed under 11 U.S.C. 301. An involuntary petition is filed by a statutorily prescribed number of creditors whose aggregate sum of claims exceed a specific amount. Involuntary petitions are governed by 11 U.S.C 303. A petition in bankruptcy lists the debtor’s assets, liabilities, and debts so that a realistic arrangement for the payment of creditors can be devised. PETITIONER One who presents a formal, written application to a court, officer, or legislative body that requests action on a certain matter. In legal proceedings initiated by a petition, the respondent is the person against whom relief is sought, or who opposes the petition. One who appeals from a judgment is a petitioner. PETITORY ACTION A legal proceeding by which the plaintiff seeks to establish and enforce his or her title to property, as distinguished from a possessory proceeding, where the plaintiff's right to possession is the issue. Such petitory actions must be based on a claim of legal title to the property, as opposed to a mere equitable interest in it. In ADMIRALTY, suits to try title to property independent of questions concerning possession. In the civil-law jurisdiction of Louisiana, a proceeding instituted by an alleged owner who does not have possession to determine ownership against one in possession. CROSS REFERENCE Admiralty and Maritime Law. PETTY OFFENSE A minor crime, the maximum punishment for which is generally a fine or a short term in a prison or a house of correction. In some states, a petty offense is a classifica- tion in addition to misdemeanor and felony. Under federal law, a petty offense is any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months, Aaron Wallace, president of the National Education Association, announces the collection of more than 400,000 signatures on a petition requesting increased spending on education in the state of Florida in March 1998. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PETTY OFFENSE 489 a fine of not more than $5,000, or both. Because a petty offense is one that is punishable by no more than a six-month sentence, the accused is not constitutionally entitled to a jury trial, which would be in order if the accused were charged with a serious offense. In the case of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the U.S. Supreme Court held that the SIXTH AMENDMENT guarantees a right to jury trials in state court, but it noted that “there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provisions and should not be subject to the FOURTEENTH AMENDMENT jury trial requirement here applied to the States.” Such offenses are those punish- able by a maximum of a $500 fine and a six- month prison term. In Duncan, the DEFENDANT had been convicted of simple BATTERY and sentenced to sixty days in state prison, along with a fine of $150, but his request for a jury trial had been denied because, under the Louisiana Constitution, jury trials were only guaranteed in cases potentially resulting in CAPITAL PUNISHMENT or hard labor. The crime was punishable by two years in prison and, as such, should have entitled the accused to a jury trial. In this decision, the Court did not delineate “the boundary between petty offenses and serio us crimes.” PHARMACIST See DRUGGIST. PHILADELPHIA LAWYER A colloquial term that was initially a compliment to the legal expertise and competence of an attorney due to the outstanding reputation of the Philadelphia bar during colonial times. More recently the term has become a disparaging label for an attorney who is skillful in the manipulation of the technicalities and intricacies of the law to the advantage of his or her client, although the spirit of the law might be violated. For example, an attorney who uses repeated motions for postponement of an action or excessive discovery requests as dilatory tactics primarily for the advantages that inure to his or her client, as opposed to legitimate grounds for such actions, might be regarded as a Philadelphia lawyer. PHOTO LINEUP A photo lineup is a presentation of photographs to a victim or witness of a crime. A photo lineup, also known as a photo array and or photo display, is a procedure used by law enforcement personnel to discover or confirm the identity of a criminal suspect. Generally a police officer shows a set of photographs to a victim or witness and asks whether he or she recognizes one of the persons in the photographs as the perpetra- tor. A positive identification of a suspect can be used to place the suspect under arrest, and the act of identification may be used later as evidence in the prosecution of the DEFENDANT. The Supreme Court has ruled that photo lineups should not be unduly suggestive (Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 [1977]). That is, a photo lineup should not be conducted in such a way as to highlight the suspect and elicit an identification of the suspect. If a photo lineup is unduly suggestive, any affirmative iden tification of a suspect may be excluded from her orhissubsequent prosecution. Police officers typically avoid suggestive photo lineups because they are interested in apprehend- ingthe rightperson.Toward thisend,theymayask a witness to look at more than one photo lineup containing the suspect to see if the witness can identify the suspect more than once. Each photo lineup may contain as many as six or more photographs of different persons. Furthermore, to be effective, a photo lineup should contain pictures of persons who look similar to the suspect. For example, if police suspect a Caucasian male and a witness remembers seeing a blond, light-skinned male, the photo lineup will not consist of five pictures of dark-haired, dark- skinned males and one picture of the suspect. For publicsafety reasons, police officers do not always take the time to arrange a photo lineup to show witnesses. In some cases officers may use only one picture of a suspect. In a case of violent crime, for example, police may need to act swiftly and locate a particular suspect. In Manson, the Supreme Court ruled that using one photograph for the purpose of identifying a person as a criminal suspect is not unduly suggestive. The use of photographs in a criminal investi- gation is just one identification procedure used by police. Other procedures include show-ups and in-person lineups. A show-up is the exhibition of a particular criminal suspect to a victim or witness shortly after the crime occurred. An in-person GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 490 PHARMACIST lineup is the live presentation of several persons, including the suspect, to the witness. Courts examine all the circumstances surrounding an identification. To determine whether any identification is unduly suggestive and, therefore, inadmissible at trial, courts analyze seven factors: the opportunity the witness had to view the suspect, the degree of attention the witness paid to the suspect, the accuracy of the witness’s description before viewing the suspect or the suspect’s photograph, the witness’slevelof certainty in identifying the suspect, and the length of time that elapsed between the crime and the witness’s viewing of the suspect. A criminal defendant does not have the right to have an attorney present at a photographic lineup until after he or she is indicted or formally charged (United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 [1973]). Nor does a criminal defendant have the right to a hearing, outside the presence of the jury, to make an attempt to block the presentation of photo- graphic identifications (Watkins v. Sowders, 449 U.S. 341, 101 S. Ct. 654, 66 L. Ed. 2d 549 [1981]). However, a defendant does have the right to show to the judge and jury any photographic evidence used in the case, to challenge the witnesses on CROSS-EXAMINATION, and to argue to the judge or jury that the photo identification procedure was unduly suggestive and that any identification from it should be disregarded (United States v. Ash, 413 U.S. 300, 9 3 S. C t. 2568, 37 L. Ed. 2d 619 [1973]). Amid a growing debate concerning how investigators should conduct photo lineups, some police agencies have begun drafting their own written policies concerning the issue. In May 2009, the police department in Austin, Texas, for example, began reviewing case studies, scientific data and practices of other police agencies in order to develop its own policy concerning photo lineups. Included in the materials reviewed was research from the Justice Project, a nonprofit organization that aims to improve the accuracy of the criminal justice system, and suggestions from the U.S. DEPARTMENT OF JUSTICE (DOJ) and the AMERICAN BAR ASSOCIATION (ABA). FURTHER READINGS Hess, K?ren, and Christine Hess Orthmann. 2009. Criminal Investigation. 9th ed. Delmar Cengage Learning. Plohetski, Tony. 2009. “Austin Police Develop Photo Lineup Policies.“Austin American-Statesman, May 8. CROSS REFERENCES Criminal Law; Criminal Procedure; Due Process of Law; Right to Counsel. PHYSICAL FACT In the law of evidence, an event having a corporeal existence, as distinguished from a mere conception of the mind; one that is visible, audible, or tangible, such as the sound of footsteps or impressions made by human feet on the ground. PHYSICIAN-ASSISTED SUICIDE See EUTHANASIA “Euthanasia and Physician- Assisted Suicide” (In Focus). PHYSICIAN-PATIENT PRIVILEGE See PHYSICIANS AND SURGEONS; PRIVILEGED COMMUNI- CATION . PHYSICIANS AND SURGEONS Physicians and surgeons are medical practi- tioners who treat illness and injury by prescrib- ing medication, performing diagnostic tests and evaluations, performing surgery, and providing other medical services and advice. Physicians and surgeons are highly trained and duly authorized by law to practice medicine. The education and focus of chiropractors, dentists, and optometrists differ from those of physicians and surgeons. However, the laws relating to physicians and surgeons generally apply to these medical professionals as well. In addition, these healthcare providers are subject to laws regulating their specific area of practice. They are prohibited by law from practicing medicine or surgery. A physician or surgeon does not have an unqualified right to practice medicine. The state legislature determines who is allowed this privilege and exercises its POLICE POWER to protect the public from deception, FRAUD, and incompetence. A legislature’s authority to regu- late the practice of medicine is, broadly speaking, only limited by the requirements that the rules are reasonable, bear some relation to the object to be attained, and do not violate any constitutional rights. Legislat ures have the power to require a license or certificate to practice medicine within the state and to make practicing medicine without a license a criminal offense. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PHYSICIANS AND SURGEONS 491 Statutes and regulations carefully regulate who may use the title “doctor.” Use of the title or its abbreviation without an indication of the type of degree—D.O., M.D., etc.—is specifically forbidden in many states unless the person holds a physician’s and surgeon’s certificate. State statutes delineate requirements for a license to practice medicine. To obtain a license, an applicant must demonstrate requisite educa- tion and knowledge. A college degree and graduation from an accredited medical school typically fulfills the education requirement, and passing a state-licensing exam demonstrates an applicant’s skills. State law determines who may sit for an exa m and typically limits the number of tries an applicant has to passthe exam. Specialists, such as cardiologists, ophthalmologists, pediatri- cians, and neurosurgeons, must usually pass further exams beyond the initial licensing exam. Applicants typically must meet certain physical health standards and establish that they are of good moral character. Good moral character means that a person is reliable, trustworthy, and not likely to deceive the public. An applicant who is refused a license because of a lack of good moral character is entitled to receive notice of the reasons and to have a hearing on the issues. State laws typically provide for JUDICIAL REVIEW of a denial, after all administrative appeals have been exhausted. Under certain circumstances, physicians licensed in another state may be permitted to waive examination. Commissioned medical offi- cers in the ARMED SERVICES are typically exempt from a state’s licensing statute when performing official medical services within the state. State legislatures have routinely delegated the authority to supervise licensing, exam, and suspension and revocation procedures to a state board of medical examiners. A board’s power is limited to the express powers given to it by statute and the implied powers necessary to carry out the express powers. For action to be taken against a practitioner, a nexus must exist between the acts or omissions and the fitness or competency required to practice medicine. Past isolated incidents unrelated to the profession are generally insufficient by themselves to form a basis for a disciplinary action. Statutes commonly use words such as unprofessional, dishonorable, or immoral conduct when describing conduct warranting suspension or revocation. Other terms used are gross immorality, willful or wanton misconduct, MAL- PRACTICE , gross violation of one’s professional duties, gross misconduct in the practice of the profession, or grossly unprofessional conduct of a type likely to deceive or defraud. These terms are not required to be defined with any particularity. Instead, every case is judged on its own particular facts. Some of the reasons physicians or surgeons have their licenses revoked or suspended are: failure to keep complete and accurate records of controlled substances, conviction of a crime (particularly one involving MORAL TURPITUDE), drunkenness, abandonment of a patient, delib- erate falsification of medical records, fraud in procuring a license, professional incompetence, assisting or aiding another in the unlicensed practice of medicine, and sexual imposition on a patient. A license revocation in one state may be the basis for revocation in another. State boards are charged with the duty of investigating allegations of professional miscon- duct. Depending upon the licensing statute, a patient, the state or state licensing board, or any other person may instigate a complaint. During the investigative stage, before a determination has been made to institute f ormal revocation States carefully regulate who may use the title “doctor” or obtain a license to practice medicine. Specialists such as pediatricians must typically pass exams beyond the initial licensing exam. ROBERT MAASS/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 492 PHYSICIANS AND SURGEONS proceedings, no requirement exists that the physician be informed of the nature of the charges, know the name of the COMPLAINANT,or participate in selecting any documents. However, a license to practice medicine cannot be revoked without DUE PROCESS OF LAW.Dueprocessmeans that the physician must receive notice of the intended action and have an opportunity to be heard. The complainant has the burden to establish the facts in order to justify revocation. Judicial review of a suspension or revocation is limited to a determination of whether the deciding board abused its discretion. A court will examine whether a sanction is so dispro- portionate to the offense that it is shocking to a reasonable person’s sense of fairness in light of all the circumstances. In general, a physician with a license to practice medicine has the unlimited authority to prescribe for and treat the ill and afflicted and may choose to employ any legitimate method of treatment. In some instances, state law might permit a physician to practice optometry or dentistry, al though the converse is never permitted. A physician stands in a FIDUCIARY relationship to her patients, meaning that the physician must always exercise the utmost GOOD FAITH and trust when dealing with patients. A confidential relationship exists between the parties: because a patient must feel free to disclose any informa- tion that might pertain to treatment and diagno- sis, the physician has the professional obligation to keep information confidential absent a patient’s consent. But a physician cannot attempt to shield his own incompetence by refusing to disclose information. Moreover, a physician may have a statutory duty to reveal information concerning a patient. Doctors are required to provide authorities with information regarding birth and death, CHILD ABUSE, and contagious or infectious diseases. A physician may also have a duty to disclose confidential information to third parties in other circumstances. Physicians and their patients have a con- tractual relationship. A request for an appoint- ment will not suffice to form a doctor-patient relationship, but a telephone call to initiate treatment might. The relationship continues until treatment is completed or upon agreement by the parties. The physician agrees to treat the patient but rarely promises a specific outcome or cure. If a doctor promises a specific outcome but fails to deliver it, the doctor may be liable for breach of contract. One example would be a surgeon who promises that cosmetic surgery will produce certain results. A physician’s conduct must always meet the standard of care set by the profession or he may be liable for malpractice. Physicians and surgeons must possess and exercise the same level of skill and learning ordinarily possessed and exercised by other members of their pro- fession under similar circumstances. Some of the responsibilities a physician or surgeon has toward a patient include a duty to n Fully inform a patient of her condition n Notify a patient of the results of a diagnosis or test n Inform the patient of the need for different treatment or refer the patient to a specialist or other qualified practitioner n Continue medical care until proper termi- nation of the relationship n Give proper notice before withdrawal from treatment n Not abandon a patient, inc luding makin g arrangements for treatment during absences n Treat nonpaying patients the same as those who pay n Use diligence in treatment in providing all necessary care n Obtain a patient’s INFORMED CONSENT before performing a medical procedure n Instruct others as to the care and treatment of a patient n Warn others of exposure to communicable and infectious diseases A patient has a duty to cooperate with a physician and participate in treatment and diagnosis. For example, a patient does not have a general duty to volunteer unsolicited information but is required to disclose a complete and accurate medical history upon questioning by a physician. A patient also must return for further treatment when required. Failure to cooperate or participate in treatment may result in a limited recovery for a physician’s malpractice or completely bar recov- ery,depending uponthecircumstances of the case. Malpractice occurs when a patient is injured by a physician’s bad or unskillful practices. Malpractice is the failure to do something that a reasonably careful physic ian or surgeon would GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PHYSICIANS AND SURGEONS 493 do, or doing something a reasonably careful physician would not do, under the same circumstances. It is a deviation from an established standard of practice—a failure to exercise the required degree of skill, care, and diligence or follow accepted rules. It can be willful or due to lack of skill or neglect; it can be a single act or something occurring over the course of treatment. Normally, in the absence of a special agreement, a physician need not exercise ex- traordinary skill. Nor must a physician anticipate consequences resulting from peculiar character- istics and conditions of a patient, if the physician has no knowledge of them or would not be expected to reasonably discover them. Not every wrongful act by a physician amounts to malpractice. A physician is ordinarily not liable for injurious consequences if she exercises the required degree of skill and care. A want of skill or care must be the PROXIMATE CAUSE or a substantial factor in the injury or death, but not necessarily the sole cause. The standard of care was traditionally deter- mined with reference to the geographic locality of the treatment, meaning the level of care exercised by other physicians or surgeons in good standing in the same general line of practice in the same or similar locality. The locality standard developed when there were significant differences in the opportunities for continuing medical education and vast differences in access to hospitals. However, the twenty-first century’sincreased ease in dissemination of information, coupled with more uniform methods of treatment, have significantly downgraded the importance of the locality rule. Many jurisdictions now view locality as only one factor to examine rather than a conclusive limit on the degree of skill required. Other authorities have completely abandoned the locality rule in favor of a national standard. Specialists are held to the standard of care of other specialists in the same field under similar circumstances. Because of their advanced training and knowledge, specialists are typically held to a higher standard than that required of general practitioners. Physicians who are not certified as a specialist, but hold themselves out to be specialists or perform procedures normally done by specia- lists are also held to a specialist’sstandard. A physician must refer a patient or seek a consultation if he knows, or should know, that the treatment of a particular patient is be yond his skill. If a physician fails to make a referral or seek a consultation, he is held to the standard of care applicable to the appropriate specialty that should have been consulted. A physician or surgeon is bound to follow methods that are generally approved and recog- nized by the profession but is not limited to the most generally accepted treatment methods. Determining whether a treatment is a respected minority treatment can present a difficult task. Nevertheless, a practitioner who otherwise adheres to the applicable standard of care is typically not held liable for an error in judgment in choosing from different accepted treatments or diagnostic methods. A physician’sactionsare viewed in terms of the state of medicine at the time of the claimed malpractice, rather than on subsequent medical discoveries or knowledge. A physician has a non-delegable duty of care, which means that the physician is responsible for injury caused by assistants, employees, agents, or apprentices, when that injury is caused by a lack of proper skill or care. For example, a surgeon who retains control over the procedures used by an anesthesiologist may be liable for the negligent actions of the anesthesiologist. Generally, a physician will not be liable for a hospital’s NEGLIGENCE or the negligence of others not within his control but may be liable where the negligence is discoverable by the physician in the ordinary course of treatment. A physician may have an affirmative duty toward a third person who is not the physician’s patient when there is a foreseeable risk of harm to the third person by the patient, of which the physician is aware or should be aware. For example, this duty may arise when a psychiatric patient threatens to harm a known victim or when a patient with a sexually transmitted disease refuses to notify his sexual partners of the illness. At least in the latter case, a physician’s duty would generally be limited to those persons readily identified as being in danger. To prevail on such a claim, a THIRD PARTY must demonstrate that she was within the scope of a foreseeable risk of harm and that negligent treatment of the patient was the proximate cause of her injuries. A minority of states recognize WRONGFUL LIFE claims. These are actions brought by or on behalf of a disabled child, alleging that the child was born due to a doctor’s negligent failure to properly advise the parents, even though the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 494 PHYSICIANS AND SURGEONS doctor did not cause the disability. The first case to recognize a wrongful life claim took place in 1980 in California, when a doctor negligently failed to detect Tay-Sachs disease (Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 [Cal. App. 1980]). The parents had specifically sought prenatal testing for the crippling disease. The severely disabled baby girl had a life expectancy of no more than four years. The court ruled that the serious nature of the harm, coupled with the fact that the disease went undetected because of a lack of due medical attention, sufficed to permit the action. WRONGFUL BIRTH and wrongful life actions arise out of the same set of circumstances but are brought by different parties. In a wrongful life suit, the child (or someone acting on behalf of the child) is the PLAINTIFF; in the wrongful birth case, the parents BRING SUIT. Often the term wrongful birth encompasses two categories: wrongful conception or WRONGFUL PREGNANCY cases involve a woman who gave birth to an unwanted but healthy child; wrongful birth involves a child who was born with a handicap. Wrongful pregnancy cases may arise when the DEFENDANT negligently performs a steriliza- tion procedure or otherwise provides ineffective contraception; when a doctor negligently per- forms an ABORTION, resulting in the birth of a healthy child; or when a physician negligently fails to diagnose a pregnancy and the mother is thereby den ied the choice of an abortion at a timely stage. A majority of states recognize a wrongful pregnancy CAUSE OF ACTION . Most, however, limit damages to the pain associated with the failed procedures. A few jurisdictions permit recovery of child-rearing expenses, but some of those states require that the award be offset by the parents’ emotional benefits of raising a healthy child. Wrongful life claims are permitted in some jurisdictions, but some courts have ruled that the cause of action does not exist in the absence of a statute giving rise to the claim. In addition, the cause of action has been specifically eliminated by statute in some jurisdictions. In 1989 Congress created the National Practitioner Data Bank (NPDB) to mandate collection of information regarding incompetent practitioners. The NPDB began operation on September 1, 1990; its reporting requirements are not retroactive. The data bank collects informa- tion on all malpractice payments of more than one dollar made on behalf of physicians, dentists, and other licensed healthcare practitioners. The NPDB also collects information regarding disciplinary actions taken by state medical and dental boards. It monitors professional review actions taken by hospitals and other entities adversely affecting a physician’sclinicalprivileges for more than 30 days and a practitioner’s voluntary surrender of clinical privileges during an investigation for incompetence or improper professional conduct. The NPDB also collects information on adverse actions by professional societies against its members. Insurers, hospitals, medical societies, and boards of medicine must report to the NPDB; plaintiffs or their attorneys may not submit reports. Practitioners receive copies of the reports against them and have an opportunity to dispute the accuracy of the information. The data bank has been criticized because the current regulations sometimes allow “cor- porate shielding” to protect practitioners from being reported. Because only individuals, not entities, must be reported, a pract itioner would probably not be reported when a malpractice settlement was made on behalf of an incorpo- rated group practice without naming a specific physician. Others criticize the data bank’s one- dollar requirement, arguing that “nuisance” claims under a certain amount should not be reported or that different specialties should be given different monetary thresholds before reporting is mandated. By regulation, hospitals must query the NPDB when considering a physician for a medical staff appointment or for clinical privileges. They must also query at least once every two years concerning any physician who is on its medical staff o r has clinical privileges at the hospital. Boards of medical examiners, professional societies, other state licen sing boards, or other healthcare entities entering an employment or affiliation arrangement with a physician may also request information at any time. A physician may query the NPDB concerning his own record at any time. Attorneys may have access in very limited circumstances where proof exists that a hospi- tal failed to make a required query. MEDICAL MALPRACTICE insurers are not allowed access to NPDB information. Access to infor- mation in the NPDB is available to entities that meet the eligibility requirements defined in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PHYSICIANS AND SURGEONS 495 provisions of P.L. No. 99–660 and the NPDB regulations. In order to access in formation, entities must first register with the Data Bank. NPDB information is not available to the general public. However, the NPDB maintains an Internet site and makes available information in a form that does not identify any particular entity or practitioner. Some physicians become embroiled in political and ideological disputes based on their practices. For instance, Dr. JACK KEVORKIAN of Michigan was an outspoken proponent of EUTHANASIA, and he eventually spent eight years in prison for assisting patients to commit SUICIDE. Some doctors have been accused of hastening death for the purpose of harvesting organs, though this pract ice is more common in other countries than it is in the United States. FURTHER READINGS Alexander, Barry D. 2008. Fundamentals of Health Law. Washington, DC: American Health Lawyers Association. Appleby, Kristyn S., and Joane Tarver. 1994. “Confidential- ity of Medical Records.” Trial Diplomacy Journal (September–October). Borzo, Greg. 1996. “Liability Records Going On Line in Massachusetts.” American Medical News (July 1). Guglielmo, Wayne J. 1996. “Are Doctors Evading the Malpractice Data Bank?” Medical Economics (May 28). Jackson, Anthony. 1995. “Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England.” Loyola of Los Angeles International and Comparative Law Journal (April). Koop, C. Everett. 1991. Koop: The Memoirs of America’s Family Doctor. New York: Random House. National Practitioner Data Bank. Available online at http:// www.npdb-hipdb.com (accessed August 22, 2003). Pegalis, Steven E. 2005. American Law of Medical Malprac- tice. 3d ed. Eagan, MN: Thomson/West. Snider, Howard C., Jr. 1989. A Jury of My Peers: A Surgeon’s Encounter with a Malpractice Crisis. Greenwood, FL: Penkevill. CROSS REFERENCES Assisted Suicide; Health Care Law; Health Insurance; Malpractice; Managed Care; Medicaid; Medicare; Patients’ Rig hts; Physician-Patient Privilege; Privileged Communication. PICKETING The presence at an employer’s business of one or more employees and/or other persons who are publicizing a labor dispute (e.g., during a strike), influencing employees or customers to withhold their work or business, respectively (i.e., to dissuade them from “crossing the picket line”), or showing a union’s desire to represent employees. Picketing is usually accompanied by patrolling with signs and/or distributing handbills summa- rizing the participants’ grievances or agenda. In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the U.S. Supreme Court held that peaceful picketing in a public space is, in and of itself, protected under the First Amendment, and that laws protecting private property are not, by themselves, sufficient to prohibit such activity. CROSS REFERENCES First Amendment; Free Speech; Labor Law; Labor Union. v PIERCE, FRANKLIN Franklin Pierce served as the 14th president of the United State s from 1853 to 1857. He was the youngest person to be elected presi dent up to that time. A northern Democrat who sought to Franklin Pierce 1804–1869 ▼▼ ▼▼ 1800 1875 1850 1825 ❖ ◆ 1804 Born, Hillsboro, N.H. 1829 Elected to N.H. Legislature 1827 Admitted to N.H. bar; father Benjamin Pierce elected governor of N.H. 1824 Graduated from Bowdoin College (Maine) 1837–42 Served in U.S. Senate 1854 Signed Kansas-Nebraska Act; Commodore Perry negotiated limited access for U.S. ships to use Japanese ports; Ostend Manifesto disclosed 1846–48 Mexican War 1853–57 Served as U.S. president 1857 Dred Scott v. Sandford 1869 Died, Concord, N.H. 1861–65 U.S. Civil War ❖ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ 1832 Elected to U.S. House 1865 Refused to mourn assassination of Lincoln 1856 John Brown led raid against pro-slavery supporters in Kansas 1853 U.S. acquired parts of present-day New Mexico and Arizona with Gadsden purchase GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 496 PICKETING preserve southern SLAVERY, Pierce’s administra- tion proved a failure because he antagonized the growing abolitionist movement by signing the KANSAS-NEBRASKA ACT of 1854, which gave the two new territories the option of whether to permit slavery. Pierce was considered a “doughface,” the term for Northerners who sympathized with the South. He was unable to win renomination for a second term. Pierce was born on November 23, 1804, in Hillsboro, New Hampshire. His parents were Benjamin and Anna Kendrick Pierce. Pierce graduated from Bowdoin College in 1824 and returned home to take over his father’s duties as postmaster, after his father entered politics. Pierce studi ed law with a local attorney and was admitted to the New Hampshire bar in 1827. In that same year his father was elected governor of New Hampshire, which proved helpful to Pierce’s own nascent political ambitions. Pierce was elected as a Democrat to the New Hampshire Legislature in 1829 and in 1832 was elected to the U.S. HOUSE OF REPRESENTATIVES . A strong supporter of Presi- dent ANDREW JACKSON, Pierce also became associated with the cause of slavery. In 1835 he attacked the flood of abolitionist petitions addressed to the House, which contained the signatures of more than two million people. He joined southern Democrats in imposing a “gag rule” that prevented the House from receiving or debating these petitions. In 1836 Pierce was elected to the U.S. Senate. He resigned in 1842 for personal reasons and returned to Concord, New Hampshire, to become the federal district attorney. Except for a brief tour of duty as an Army officer during the Mexican War (184 6–48), Pierce remained out of the political arena until the DEMOCRATIC PARTY national convention in 1852. The three leading candidates for the presidential nomina- tion, Lewis Cass, STEPHEN A. DOUGLAS, and JAMES BUCHANAN , failed to win the necessary votes after 48 ballots. The convention turned to Pierce on the 49 ballot as a compromise candidate who, though virtually unknown nationally, enjoyed support from northern and southern Democrats. He easily defeated General Winfield Scott, the WHIG PARTY candidate, in November 1852. Pierce took office in March 1853, at a time when the issue of slavery threat ened to divide both the Demo cratic and Whig parties, as well as the nation itself. Pierce sought to ease tensions by appointing a cabinet that contained a mix of southern and northern officials. Still critical of abolitionism, he enraged the antislav- ery movement with his signing of the Kansas- Nebraska Act of 1854. The act repealed the MISSOURI COMPROMISE OF 1820, which restricted the boundaries of slavery to the same latitude as the southern boundary of Missouri—36 30 0 north latitude. The new territories of Kansas and Nebraska were organized according to the principle of popular sovereignty, which permit- ted voters to determine for themselves whether slavery would be a legalized institution at the time of the territories’ admission as states. Abolitionists saw the popular sovereignty principle as a means of e xtending slavery northward and westward. Pierce proved weak and indecisive as violence erupted in Kansas and Nebraska. On May 25, 18 56, the militant abolitionist JOHN BROWN led a raid against supporters of slavery at Pottawatomie Creek, Kansas, killing five persons. Though appalled at the raid, Pierce said nothing and did little to address the growing violence between aboli- tionists and supporters of slavery that soon gave the territory the name “Bleeding Kansas.” His support of slavery led to defections from the Democratic party and ultimately contrib- uted to the establishment of the antislavery REPUBL IC A N PARTY . Franklin Pierce. LIBRARY OF CONGRESS A REPUBLIC WITHOUT PARTIES IS A COMPLETE ANOMALY . T HE HISTORY OF ALL POPULAR GOVERNMENTS SHOW HOW ABSURD IS THE IDEA OF THEIR ATTEMPTING TO EXIST WITHOUT PARTIES . —FRANKLIN PIERCE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PIERCE, FRANKLIN 497 . on education in the state of Florida in March 1998. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION PETTY OFFENSE 489 a fine of not more than $5,000, or both. Because a petty offense is one that. license a criminal offense. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PHYSICIANS AND SURGEONS 491 Statutes and regulations carefully regulate who may use the title “doctor.” Use of the title or. to appear in court to argue the merits of the issues it contains. A prisoner may file a petition for a writ of HABEAS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 488 PERSUASIVE AUTHORITY CORPUS,