It happens all the time. You want or need something. You may need medical care at a hospital. You may need phone service. You may need a loan or a credit card to make ends meet. You decide to build a home.
To get what you need or want, the seller requires you to sign a contract. You try to take the time to read it, but the seller insists on rushing you or distracting you. Perhaps you can’t understand the document as it’s full of legal jargon, or the type is so small, you can’t read it. Later, you discover that the seller, formerly Mr. Friendly, is now running off with your life savings and that there’s nothing you can do about it.
This law letter is the first of a series that identifies some of the contract clauses that will cause you BIG trouble.
Arbitration
Generally, you have a right to a jury trial before an unbiased judge in North Carolina. You may find a clause in your contract requiring you to submit any dispute to binding arbitration. Sign that contract and you have given up your right to get help from the courts. You will often see these clauses in construction contracts and in the admitting papers for some hospitals.
The North Carolina Supreme Court, in the Tillman case from 2008, described some of the problems with arbitration. If your case involves at least $10,000, the filing fee with the American Arbitration Association is currently $1275 plus the cost of renting the hearing room. Court filing fees in North Carolina are less than $200.00. In 2005, arbitrators with the American Arbitration Association charged as much as $2380 per day. In North Carolina, judges are free. The Court, in its 2008 ruling, noted that in many cases, the “high arbitration costs” were “prohibitive.”
Some have also argued that arbitration has the potential for bias against the consumer. They note that while one bank, hospital, or builder may present numerous cases to a particular arbitrator, the consumer is likely to face the arbitrator only once. They claim that the arbitrator is biased in favor of the party who is likely to bring repeat business.
You Pay Our Attorney
Under North Carolina law, as a general rule, each side pays his own attorney fees. Look out for the contract that says you will pay the Seller’s attorney fees and/or costs. A typical attorney fee for litigation ranges anywhere from $300.00 per hour to $500.00 per hour. Do the math. You can be facing thousands of dollars in attorney fees from the other side.
Typically the contract will require you to pay attorney fees for the other side only if you lose your case. I just received a proposed debit card agreement from my bank. It states that I will pay their attorney fees even if I win my case unless I can prove that the bank was “grossly negligent” or committed “willful misconduct.” Essentially, I can’t afford to fight back if a dispute arises between me and the bank.
In addition to attorney fees, the “costs” in any case can be prohibitive. Paying a court reporter to attend a deposition and transcribe it can run into thousands of dollars. Bring a witness in from out of town, and you can get stuck with airfare, hotel bills, and meals. If that witness is an expert, you can be required to pay an hourly rate. The last time I hired a plastic surgeon in a case, his hourly rate was $500.00. He also required a $2000 deposit each time the case was put on the court calendar. That can happen several times in any given case. Plaintiff’s expert witness fees in my last medical malpractice case exceeded $100,000.00. Can you imagine the expense if we had lost and had to pay defense costs and attorney fees as well as our own costs?
Security Interest in Other Property
Another feature you may find in your mortgage agreement or other bank contract is the clause giving the bank a right to any money in any account you may have at the bank as well as in any of your personal property the bank can access. So, assume you have a safety deposit box, a business account, a personal account, and a retirement account at your bank. Then, because you lose your job or become sick, you can’t pay your mortgage. According to the contract, the bank can seize your retirement money. Retirement accounts would otherwise be protected from creditors under North Carolina law. And if Grandma’s diamond rings are in your safety deposit box, the Bank can take them as well. If you want to fight the bank over the seizure of your assets, you’d better win. Otherwise, you’ll be facing thousands of dollars in attorney fees and court costs.
In Short . . .
Banks and others have figured out that they can make millions by slipping the above clauses in their contracts. You can be cheated out of thousands of dollars if you sign a contract with these provisions. And the North Carolina courts will generally not help you out. The 2008 case I mentioned above was the first case in the history of North Carolina in which the Courts threw out an oppressive or “unconscionable” agreement. The general rule is that once you sign an agreement you are stuck with it. So be careful. Be sure you read contracts and understand them before you sign them. Good luck. You are swimming with sharks.
Tuesday, December 7, 2010
Bound Man, Part 2
Last month’s newsletter warned about damaging clauses that are showing up in many contracts. They lurk in sales contracts and in agreements from banks, credit card companies, professionals (architects, contractors, etc.), and hospitals. They include arbitration provisions, contracts requiring you to pay the other party’s attorney fees and court costs, and agreements in which you are tricked into giving up your property rights. This month’s newsletter alerts you to other sneaky clauses to avoid.
Limits on Liability
The courts usually determine the amount of damages in cases where a litigant has been wronged. For example, assume you hire an architect to build your new home. If the architect’s plans have a design flaw and your $500,000 house falls apart, you can recover the $500,000 and damages for any injuries sustained by persons in the house when it collapses. However, the architect may have a clause in his contract limiting his liability to the amount of his fee. Assume the architect charged you $60,000 for his services in connection with your house. In that event, if the house falls down, you are out $440,000. If you were in your house when it fell down, you’d better hope you have good health insurance and a good disability insurance policy. You won’t get any help from the architect.
Warranty Disclaimer
The law imposes warranty obligations on the Sellers of most products. For example, a contractor who builds your home warrants that it is “habitable,” or suitable to be lived in. He also warrants that it is “merchantable,” or that you should be able to sell it for a reasonable price. If a company sells you a device that it claims will emit sounds that frighten away vicious dogs, it has warranted or guaranteed you that it will do that. Courts refer to this as a “warranty for a particular purpose.”
Seeking to avoid liability for shoddy products, many Sellers insert clauses into their sales contracts providing that the Buyer is giving up his warranty rights. Assume you have signed such an agreement with the Seller of the dog protection device described above. Then assume that the first time you try it out, the beast mauls you because the noise the device has emitted doesn’t frighten the dog. It merely aggravates him. Once more, you are on your own. Good health insurance and disability insurance policies are a must if you insist on signing contracts with warranty disclaimers. You should also be sure your estate papers are in good order and that you know a good bankruptcy attorney.
Forum Clauses
If a California company markets its products to you when you live in North Carolina, you generally have the right to have any problems with that company resolved in a North Carolina court. But if you have signed an agreement giving the California courts jurisdiction over the case, you will have to find a California lawyer and pay the cost of flying yourself and your witnesses to California for court. You will also have the pleasure of paying for hotel and food bills during the several weeks you and your witnesses are in deposition and trial. If the case concerns a defective product, like a car, you may have to pay to have it hauled out to California for the trial.
Contracts with “forum” clauses usually specify that the laws of the foreign state will apply. You can be sure that the laws of that state will be less friendly to consumers than the laws of your home state.
The Right to Amend
Many contracts now provide that one party has the right to amend the contract at any time by simply notifying the other party of the amendment. I recently received a proposed amendment to my banking agreement that had this clause. It would have allowed the bank to unilaterally change the interest rates it was paying or charging me. It would also have allowed it to begin to impose limitless fees for banking services. For example, they could have started charging $100 for every deposit I made to the account. I terminated the banking relationship immediately.
No Class Actions
Most corporate contracts now contain a clause stating that you give up your right to participate in class action litigation. Assume that your bank or credit card company has cheated its thousands of customers, including you, out of $200 each. It may have accumulated billions in the scam. Angry about being hoodwinked, you talk with your lawyer about getting your money back. Imagine your frustration when you find that it will cost you at least $2000.00 to sue the bank. You realize that it would make no economic sense to file suit. Of course your bank already figured that out when it concocted the scam. And if you have signed a bank contract prohibiting class action suits, your bank wins. Such companies have learned that it’s much easier and more profitable to cheat millions of consumers out of a little bit of money than to cheat a couple of consumers out of large amounts of cash.
In Short
Be sure to read each contract before you sign it. And if you see any of the above clauses in the contract, refuse to sign it. A company insisting on such terms is not a company that is going to treat you fairly. Please, don’t sign up to get ripped off!
Limits on Liability
The courts usually determine the amount of damages in cases where a litigant has been wronged. For example, assume you hire an architect to build your new home. If the architect’s plans have a design flaw and your $500,000 house falls apart, you can recover the $500,000 and damages for any injuries sustained by persons in the house when it collapses. However, the architect may have a clause in his contract limiting his liability to the amount of his fee. Assume the architect charged you $60,000 for his services in connection with your house. In that event, if the house falls down, you are out $440,000. If you were in your house when it fell down, you’d better hope you have good health insurance and a good disability insurance policy. You won’t get any help from the architect.
Warranty Disclaimer
The law imposes warranty obligations on the Sellers of most products. For example, a contractor who builds your home warrants that it is “habitable,” or suitable to be lived in. He also warrants that it is “merchantable,” or that you should be able to sell it for a reasonable price. If a company sells you a device that it claims will emit sounds that frighten away vicious dogs, it has warranted or guaranteed you that it will do that. Courts refer to this as a “warranty for a particular purpose.”
Seeking to avoid liability for shoddy products, many Sellers insert clauses into their sales contracts providing that the Buyer is giving up his warranty rights. Assume you have signed such an agreement with the Seller of the dog protection device described above. Then assume that the first time you try it out, the beast mauls you because the noise the device has emitted doesn’t frighten the dog. It merely aggravates him. Once more, you are on your own. Good health insurance and disability insurance policies are a must if you insist on signing contracts with warranty disclaimers. You should also be sure your estate papers are in good order and that you know a good bankruptcy attorney.
Forum Clauses
If a California company markets its products to you when you live in North Carolina, you generally have the right to have any problems with that company resolved in a North Carolina court. But if you have signed an agreement giving the California courts jurisdiction over the case, you will have to find a California lawyer and pay the cost of flying yourself and your witnesses to California for court. You will also have the pleasure of paying for hotel and food bills during the several weeks you and your witnesses are in deposition and trial. If the case concerns a defective product, like a car, you may have to pay to have it hauled out to California for the trial.
Contracts with “forum” clauses usually specify that the laws of the foreign state will apply. You can be sure that the laws of that state will be less friendly to consumers than the laws of your home state.
The Right to Amend
Many contracts now provide that one party has the right to amend the contract at any time by simply notifying the other party of the amendment. I recently received a proposed amendment to my banking agreement that had this clause. It would have allowed the bank to unilaterally change the interest rates it was paying or charging me. It would also have allowed it to begin to impose limitless fees for banking services. For example, they could have started charging $100 for every deposit I made to the account. I terminated the banking relationship immediately.
No Class Actions
Most corporate contracts now contain a clause stating that you give up your right to participate in class action litigation. Assume that your bank or credit card company has cheated its thousands of customers, including you, out of $200 each. It may have accumulated billions in the scam. Angry about being hoodwinked, you talk with your lawyer about getting your money back. Imagine your frustration when you find that it will cost you at least $2000.00 to sue the bank. You realize that it would make no economic sense to file suit. Of course your bank already figured that out when it concocted the scam. And if you have signed a bank contract prohibiting class action suits, your bank wins. Such companies have learned that it’s much easier and more profitable to cheat millions of consumers out of a little bit of money than to cheat a couple of consumers out of large amounts of cash.
In Short
Be sure to read each contract before you sign it. And if you see any of the above clauses in the contract, refuse to sign it. A company insisting on such terms is not a company that is going to treat you fairly. Please, don’t sign up to get ripped off!
Thursday, October 28, 2010
It happens all the time. You want or need something. You may need medical care at a hospital. You may need phone service. You may need a loan or a credit card to make ends meet. You decide to build a home.
To get what you need or want, the seller requires you to sign a contract. You try to take the time to read it, but the seller insists on rushing you or distracting you. Perhaps you can’t understand the document as it’s full of legal jargon, or the type is so small, you can’t read it. Later, you discover that the seller, formerly Mr. Friendly, is now running off with your life savings and that there’s nothing you can do about it.
This law letter is the first of a series that identifies some of the contract clauses that will cause you BIG trouble.
Arbitration
Generally, you have a right to a jury trial before an unbiased judge in North Carolina. You may find a clause in your contract requiring you to submit any dispute to binding arbitration. Sign that contract and you have given up your right to get help from the courts. You will often see these clauses in construction contracts and in the admitting papers for some hospitals.
The North Carolina Supreme Court, in the Tillman case from 2008, described some of the problems with arbitration. If your case involves at least $10,000, the filing fee with the American Arbitration Association is currently $1275 plus the cost of renting the hearing room. Court filing fees in North Carolina are less than $200.00. In 2005, arbitrators with the American Arbitration Association charged as much as $2380 per day. In North Carolina, judges are free. The Court, in its 2008 ruling, noted that in many cases, the “high arbitration costs” were “prohibitive.”
Some have also argued that arbitration has the potential for bias against the consumer. They note that while one bank, hospital, or builder may present numerous cases to a particular arbitrator, the consumer is likely to face the arbitrator only once. They claim that the arbitrator is biased in favor of the party who is likely to bring repeat business.
You Pay Our Attorney
Under North Carolina law, as a general rule, each side pays his own attorney fees. Look out for the contract that says you will pay the Seller’s attorney fees and/or costs. A typical attorney fee for litigation ranges anywhere from $300.00 per hour to $500.00 per hour. Do the math. You can be facing thousands of dollars in attorney fees from the other side.
Typically the contract will require you to pay attorney fees for the other side only if you lose your case. I just received a proposed debit card agreement from my bank. It states that I will pay their attorney fees even if I win my case unless I can prove that the bank was “grossly negligent” or committed “willful misconduct.” Essentially, I can’t afford to fight back if a dispute arises between me and the bank.
In addition to attorney fees, the “costs” in any case can be prohibitive. Paying a court reporter to attend a deposition and transcribe it can run into thousands of dollars. Bring a witness in from out of town, and you can get stuck with airfare, hotel bills, and meals. If that witness is an expert, you can be required to pay an hourly rate. The last time I hired a plastic surgeon in a case, his hourly rate was $500.00. He also required a $2000 deposit each time the case was put on the court calendar. That can happen several times in any given case. Plaintiff’s expert witness fees in my last medical malpractice case exceeded $100,000.00. Can you imagine the expense if we had lost and had to pay defense costs and attorney fees as well as our own costs?
Security Interest in Other Property
Another feature you may find in your mortgage agreement or other bank contract is the clause giving the bank a right to any money in any account you may have at the bank as well as in any of your personal property the bank can access. So, assume you have a safety deposit box, a business account, a personal account, and a retirement account at your bank. Then, because you lose your job or become sick, you can’t pay your mortgage. According to the contract, the bank can seize your retirement money. Retirement accounts would otherwise be protected from creditors under North Carolina law. And if Grandma’s diamond rings are in your safety deposit box, the Bank can take them as well. If you want to fight the bank over the seizure of your assets, you’d better win. Otherwise, you’ll be facing thousands of dollars in attorney fees and court costs.
In Short . . .
Banks and others have figured out that they can make millions by slipping the above clauses in their contracts. You can be cheated out of thousands of dollars if you sign a contract with these provisions. And the North Carolina courts will generally not help you out. The 2008 case I mentioned above was the first case in the history of North Carolina in which the Courts threw out an oppressive or “unconscionable” agreement. The general rule is that once you sign an agreement you are stuck with it. So be careful. Be sure you read contracts and understand them before you sign them. Good luck. You are swimming with sharks.
To get what you need or want, the seller requires you to sign a contract. You try to take the time to read it, but the seller insists on rushing you or distracting you. Perhaps you can’t understand the document as it’s full of legal jargon, or the type is so small, you can’t read it. Later, you discover that the seller, formerly Mr. Friendly, is now running off with your life savings and that there’s nothing you can do about it.
This law letter is the first of a series that identifies some of the contract clauses that will cause you BIG trouble.
Arbitration
Generally, you have a right to a jury trial before an unbiased judge in North Carolina. You may find a clause in your contract requiring you to submit any dispute to binding arbitration. Sign that contract and you have given up your right to get help from the courts. You will often see these clauses in construction contracts and in the admitting papers for some hospitals.
The North Carolina Supreme Court, in the Tillman case from 2008, described some of the problems with arbitration. If your case involves at least $10,000, the filing fee with the American Arbitration Association is currently $1275 plus the cost of renting the hearing room. Court filing fees in North Carolina are less than $200.00. In 2005, arbitrators with the American Arbitration Association charged as much as $2380 per day. In North Carolina, judges are free. The Court, in its 2008 ruling, noted that in many cases, the “high arbitration costs” were “prohibitive.”
Some have also argued that arbitration has the potential for bias against the consumer. They note that while one bank, hospital, or builder may present numerous cases to a particular arbitrator, the consumer is likely to face the arbitrator only once. They claim that the arbitrator is biased in favor of the party who is likely to bring repeat business.
You Pay Our Attorney
Under North Carolina law, as a general rule, each side pays his own attorney fees. Look out for the contract that says you will pay the Seller’s attorney fees and/or costs. A typical attorney fee for litigation ranges anywhere from $300.00 per hour to $500.00 per hour. Do the math. You can be facing thousands of dollars in attorney fees from the other side.
Typically the contract will require you to pay attorney fees for the other side only if you lose your case. I just received a proposed debit card agreement from my bank. It states that I will pay their attorney fees even if I win my case unless I can prove that the bank was “grossly negligent” or committed “willful misconduct.” Essentially, I can’t afford to fight back if a dispute arises between me and the bank.
In addition to attorney fees, the “costs” in any case can be prohibitive. Paying a court reporter to attend a deposition and transcribe it can run into thousands of dollars. Bring a witness in from out of town, and you can get stuck with airfare, hotel bills, and meals. If that witness is an expert, you can be required to pay an hourly rate. The last time I hired a plastic surgeon in a case, his hourly rate was $500.00. He also required a $2000 deposit each time the case was put on the court calendar. That can happen several times in any given case. Plaintiff’s expert witness fees in my last medical malpractice case exceeded $100,000.00. Can you imagine the expense if we had lost and had to pay defense costs and attorney fees as well as our own costs?
Security Interest in Other Property
Another feature you may find in your mortgage agreement or other bank contract is the clause giving the bank a right to any money in any account you may have at the bank as well as in any of your personal property the bank can access. So, assume you have a safety deposit box, a business account, a personal account, and a retirement account at your bank. Then, because you lose your job or become sick, you can’t pay your mortgage. According to the contract, the bank can seize your retirement money. Retirement accounts would otherwise be protected from creditors under North Carolina law. And if Grandma’s diamond rings are in your safety deposit box, the Bank can take them as well. If you want to fight the bank over the seizure of your assets, you’d better win. Otherwise, you’ll be facing thousands of dollars in attorney fees and court costs.
In Short . . .
Banks and others have figured out that they can make millions by slipping the above clauses in their contracts. You can be cheated out of thousands of dollars if you sign a contract with these provisions. And the North Carolina courts will generally not help you out. The 2008 case I mentioned above was the first case in the history of North Carolina in which the Courts threw out an oppressive or “unconscionable” agreement. The general rule is that once you sign an agreement you are stuck with it. So be careful. Be sure you read contracts and understand them before you sign them. Good luck. You are swimming with sharks.
Saturday, September 25, 2010
The Scariest Halloween Costume - Be a Bedbug!
Lawyers are a worried lot. Continually dealing with things that go wrong, they forget that most things run smoothly. My normal anxiety level increased recently as I traveled to Atlanta. My hotel was a historic, locally owned, small inn nestled in an out-of-the way quaint neighborhood. Most people checking in are excited to have found such a unique place. But as I opened the old fashioned door with my antique key, a nursery rhyme popped into my head. I could hear an old nanny crooning:
“Good night. Sleep tight. Don’t you let the bedbugs bite. And if they do, take a shoe and knock ‘em till they’re black and blue.”
The first night, when I should have been getting a good night’s sleep after a six hour drive from Chapel Hill, I lay awake for hours clutching my shoe just waiting to feel the first bite. You can’t imagine my relief when a careful inspection the next morning revealed nary a blemish. But guests in other hotels have not been so lucky.
Ms. Grogan and her daughter, Dana, checked into New York’s Milford Plaza one cold January night. At 4:00 a.m., Dana jumped out of her bed, threw back the covers and turned on the lights. On her bed, she and her mother saw 50-100 bugs, some crushed and some live. There were blood splats on the sheets and on Dana’s hand. More bugs were crawling up the wall. Horrified, the Grogan’s filed suit against the motel seeking both actual and punitive damages. The hotel countersued its pest control company and the race was on.
To be financially successful, the plaintiffs needed the Court to allow their punitive damages claim to be presented to the jury. They had no evidence of any permanent physical damages or of any significant economic damages caused by the bedbug attack. To support their punitive damages claim, they argued that prior to their stay in room #1540, the hotel knew that other rooms on the 15th floor had been infected by bedbugs. Although the defendants had treated those rooms, they had not taken steps to treat adjoining rooms. Plaintiffs’ bedbug expert testified that bedbugs crawl from room to room by way of TV cables. He said the defendants should have treated the entire 15th floor and the floors above and below it.
The Court ruled that the expert’s testimony certainly showed negligence on the part of the hotel and pest control company, but that it didn’t warrant an award of punitive damages. To support a punitive damage claim, plaintiffs must show that the defendants acted with reckless disregard for the safety of others or with intent to injure others. To illustrate the type of bedbug behavior that would justify a punitive damage award, the Court referred to a Chicago case, Mathias v. Accor Economy Lodging, Inc. In that case, the hotel rented out rooms, knowing the rooms were infested with bedbugs. It had decided that it was cheaper to gamble on whether a guest would complain than to pay a pest control company. Even in Mathias, the jury awarded only $5,000 in punitive damages to the plaintiffs.
North Carolina law caps punitive damage awards at $250,000 or three times the actual loss sustained by the plaintiff, whichever is larger. The cap does not protect drunk drivers who injure or kill others. Significantly, a plaintiff who loses a punitive damages case has to pay the attorney fees and court costs incurred by the defendant in fighting the punitive damages claim. These costs can exceed $100,000.00.
It is interesting to note that neither the Grogan nor the Mathias plaintiffs inadvertently took bedbugs home with them. Accordingly, they did not have the expense or additional aggravation of having to rid their houses of bedbugs. Had that happened, the defendants would have likely argued that the plaintiffs were to blame for failing to take steps that would have kept the bedbugs out of their homes.
North Carolina law bars a plaintiff who negligently contributes to his harm from recovering any damages. This is the doctrine of “contributory negligence.” Although most of the other states in the U.S. have abandoned the doctrine as being unfair, insurance company lobbyists have kept it alive and well in the Old North State.
So you can see why the threat of a bedbug attack would keep a lawyer up at night. It offers the threat of temporary itching, pain, and disfigurement along with the additional threat of an expensive and extremely inconvenient home eradication experience laden with toxic chemicals. And dealing with all of that is at the victim’s expense.
Experts warn us that bedbug infestation will soon spread throughout our country. A few weeks ago, Rosemont, Illinois, hosted the first annual North American Bedbug Summit. The Mayo Clinic now has a website addressing bedbugs.
It’s important to keep the bedbug issue in perspective. I have discovered that excessive worrying about bedbugs can result in imaginary bugs and bug bites. Although they aren’t real, they do itch and cause temporary welts. The condition is called “delusory parasitosis.” Experts at the University of Nebraska warn consumers that pesticides will not cure this condition and can cause skin irritation that will worsen the itching. Of course, this worries me even more. I can’t figure out who on earth would think to hire Orkin to get rid of imaginary bugs. Someone must have called the Orkin man for the problem, otherwise the Cornhuskers wouldn’t be warning us against it.
So, bottom line, if you want the most frightening Halloween costume of all, I recommend the bedbug get-up. However, I warn you that bedbug trick-or-treaters who come to my house will be getting a shot of my imaginary Orkin bug spray to run them off. No Chocolate For You!
“Good night. Sleep tight. Don’t you let the bedbugs bite. And if they do, take a shoe and knock ‘em till they’re black and blue.”
The first night, when I should have been getting a good night’s sleep after a six hour drive from Chapel Hill, I lay awake for hours clutching my shoe just waiting to feel the first bite. You can’t imagine my relief when a careful inspection the next morning revealed nary a blemish. But guests in other hotels have not been so lucky.
Ms. Grogan and her daughter, Dana, checked into New York’s Milford Plaza one cold January night. At 4:00 a.m., Dana jumped out of her bed, threw back the covers and turned on the lights. On her bed, she and her mother saw 50-100 bugs, some crushed and some live. There were blood splats on the sheets and on Dana’s hand. More bugs were crawling up the wall. Horrified, the Grogan’s filed suit against the motel seeking both actual and punitive damages. The hotel countersued its pest control company and the race was on.
To be financially successful, the plaintiffs needed the Court to allow their punitive damages claim to be presented to the jury. They had no evidence of any permanent physical damages or of any significant economic damages caused by the bedbug attack. To support their punitive damages claim, they argued that prior to their stay in room #1540, the hotel knew that other rooms on the 15th floor had been infected by bedbugs. Although the defendants had treated those rooms, they had not taken steps to treat adjoining rooms. Plaintiffs’ bedbug expert testified that bedbugs crawl from room to room by way of TV cables. He said the defendants should have treated the entire 15th floor and the floors above and below it.
The Court ruled that the expert’s testimony certainly showed negligence on the part of the hotel and pest control company, but that it didn’t warrant an award of punitive damages. To support a punitive damage claim, plaintiffs must show that the defendants acted with reckless disregard for the safety of others or with intent to injure others. To illustrate the type of bedbug behavior that would justify a punitive damage award, the Court referred to a Chicago case, Mathias v. Accor Economy Lodging, Inc. In that case, the hotel rented out rooms, knowing the rooms were infested with bedbugs. It had decided that it was cheaper to gamble on whether a guest would complain than to pay a pest control company. Even in Mathias, the jury awarded only $5,000 in punitive damages to the plaintiffs.
North Carolina law caps punitive damage awards at $250,000 or three times the actual loss sustained by the plaintiff, whichever is larger. The cap does not protect drunk drivers who injure or kill others. Significantly, a plaintiff who loses a punitive damages case has to pay the attorney fees and court costs incurred by the defendant in fighting the punitive damages claim. These costs can exceed $100,000.00.
It is interesting to note that neither the Grogan nor the Mathias plaintiffs inadvertently took bedbugs home with them. Accordingly, they did not have the expense or additional aggravation of having to rid their houses of bedbugs. Had that happened, the defendants would have likely argued that the plaintiffs were to blame for failing to take steps that would have kept the bedbugs out of their homes.
North Carolina law bars a plaintiff who negligently contributes to his harm from recovering any damages. This is the doctrine of “contributory negligence.” Although most of the other states in the U.S. have abandoned the doctrine as being unfair, insurance company lobbyists have kept it alive and well in the Old North State.
So you can see why the threat of a bedbug attack would keep a lawyer up at night. It offers the threat of temporary itching, pain, and disfigurement along with the additional threat of an expensive and extremely inconvenient home eradication experience laden with toxic chemicals. And dealing with all of that is at the victim’s expense.
Experts warn us that bedbug infestation will soon spread throughout our country. A few weeks ago, Rosemont, Illinois, hosted the first annual North American Bedbug Summit. The Mayo Clinic now has a website addressing bedbugs.
It’s important to keep the bedbug issue in perspective. I have discovered that excessive worrying about bedbugs can result in imaginary bugs and bug bites. Although they aren’t real, they do itch and cause temporary welts. The condition is called “delusory parasitosis.” Experts at the University of Nebraska warn consumers that pesticides will not cure this condition and can cause skin irritation that will worsen the itching. Of course, this worries me even more. I can’t figure out who on earth would think to hire Orkin to get rid of imaginary bugs. Someone must have called the Orkin man for the problem, otherwise the Cornhuskers wouldn’t be warning us against it.
So, bottom line, if you want the most frightening Halloween costume of all, I recommend the bedbug get-up. However, I warn you that bedbug trick-or-treaters who come to my house will be getting a shot of my imaginary Orkin bug spray to run them off. No Chocolate For You!
Sunday, August 22, 2010
“DINNA YE HEAR THEM?”
September 1, 2010
I absolutely love the bagpipes. From the beginning sound of the drone, my spirits start to soar. No matter how weary or defeated I am, the roar of the pipes quickens my pulse and renews my resolve.
Sadly, few people share my adoration of the pipes. In September of 1990, my family gathered around the television for news of whether hostilities had broken out in the Gulf War. We watched as the British warships arrived. The gangplank was lowered and I thrilled to see the pipers appear. As they fired up the pipes, my 14 year old daughter sadly shook her head and announced, “The fighting will now begin.”
This year, on August 17th, World War II hero Billy Millin died at the age of 87. Piper Millin served under Lord Lovat who led the First Special Service Brigade on the D-Day assault on the Normandy beaches. Although English law forbade the use of pipers in leading war charges, Lovat reasoned that as he and Millin were both Scots, the law did not apply to them. The 21 year old Millan began playing the pipes, marching along the beach, giving heart to his fellow soldiers despite the hail of German bullets. While the Allied soldiers credited Millan with inspiring them to victory, the Germans stated that they could have easily shot Millan, but assumed he was a crazy man and took pity on him. Once again, one man’s passion is another man’s pain. Some have even argued that “The Longest Day,” a movie about the D-Day invasion, got its name from the fact that bagpipe music played during the entire assault.
Allegedly, the bagpipes were the musical instrument most hated by Americans until the recent soccer matches when the buzzing vuvuzela took over the number one slot. So, it is not surprising that Piper Davenport of Alexandria, Virginia, ran into legal problems when he wanted to play the pipes as he marched along the sidewalks of the city’s Central Business District (CBD). Perhaps, if he had been Harper Davenport, he would have been spared a lengthy legal battle. Arlington refused to allow Davenport to pipe on its streets, pointing to an ordinance that banned all performances in the CBD.
Piper Davenport argued that the ban violated his First Amendment right to freedom of speech. Although the Constitution forbids “any law” abridging the freedom of speech, the courts have ruled that reasonable laws governing speech are permissible.
To the Davenport Court’s credit, its examination of the City’s actions toward Piper Davenport did not address the impact of bagpipe music on businesses, pedestrians, policemen and others who would be trying to concentrate of their daily tasks despite stirring renditions of “Scotland the Brave” or “Amazing Grace.” Rather the Court focused on traffic patterns, the width of sidewalks, whether performers would impede public access to buildings, and parking availability. It ruled that the ban on all public performances in the CBD violated the Constitution as it did not take into account the factors mentioned above. At the end of the protracted litigation, Alexandria found it had to “pay the piper” as the Court ordered the City to reimburse Davenport’s attorney fees.
The beloved poet Whittier knew the power of the bagpipes when he wrote “The Pipes at Lucknow.” The poem was about a rebellion that broke out in India against the British. Civilians in and near the town of Locknow ran for safety to the compound known as “the Residency”. There, the rebels surrounded and besieged them for three months. The people knew that surrender was impossible as the rebels had recently massacred those who had surrendered in a neighboring city. As the siege dragged on, food, water and supplies were exhausted. Many fell sick and died. One morning, a feverish Scottish woman threw herself on the ground and yelled, “Dinna ye hear it?” Others rushed to her believing she had become delirious. But she insisted “Hear ye no MacGregor’s, the grandest o’ them all.” Finally, the others “fell silent” and heard at last as “rose and fell the piper’s blast . . . the piping of the clans.”
So, hats off to the Fourth Circuit Court of Appeals for rescuing the pipers. Perhaps one day, as I sit in court, withering under the attack of some insurance company lawyer’s malignant legal maneuvering, I will hear the strains of “Heiland Laddie” as a tartan-kilted piper bravely breaks out his pipes on the sidewalk outside. In fact, I should probably start taking my IPod to court, just in case the pipers are busy elsewhere when I need back up.
September 1, 2010
I absolutely love the bagpipes. From the beginning sound of the drone, my spirits start to soar. No matter how weary or defeated I am, the roar of the pipes quickens my pulse and renews my resolve.
Sadly, few people share my adoration of the pipes. In September of 1990, my family gathered around the television for news of whether hostilities had broken out in the Gulf War. We watched as the British warships arrived. The gangplank was lowered and I thrilled to see the pipers appear. As they fired up the pipes, my 14 year old daughter sadly shook her head and announced, “The fighting will now begin.”
This year, on August 17th, World War II hero Billy Millin died at the age of 87. Piper Millin served under Lord Lovat who led the First Special Service Brigade on the D-Day assault on the Normandy beaches. Although English law forbade the use of pipers in leading war charges, Lovat reasoned that as he and Millin were both Scots, the law did not apply to them. The 21 year old Millan began playing the pipes, marching along the beach, giving heart to his fellow soldiers despite the hail of German bullets. While the Allied soldiers credited Millan with inspiring them to victory, the Germans stated that they could have easily shot Millan, but assumed he was a crazy man and took pity on him. Once again, one man’s passion is another man’s pain. Some have even argued that “The Longest Day,” a movie about the D-Day invasion, got its name from the fact that bagpipe music played during the entire assault.
Allegedly, the bagpipes were the musical instrument most hated by Americans until the recent soccer matches when the buzzing vuvuzela took over the number one slot. So, it is not surprising that Piper Davenport of Alexandria, Virginia, ran into legal problems when he wanted to play the pipes as he marched along the sidewalks of the city’s Central Business District (CBD). Perhaps, if he had been Harper Davenport, he would have been spared a lengthy legal battle. Arlington refused to allow Davenport to pipe on its streets, pointing to an ordinance that banned all performances in the CBD.
Piper Davenport argued that the ban violated his First Amendment right to freedom of speech. Although the Constitution forbids “any law” abridging the freedom of speech, the courts have ruled that reasonable laws governing speech are permissible.
To the Davenport Court’s credit, its examination of the City’s actions toward Piper Davenport did not address the impact of bagpipe music on businesses, pedestrians, policemen and others who would be trying to concentrate of their daily tasks despite stirring renditions of “Scotland the Brave” or “Amazing Grace.” Rather the Court focused on traffic patterns, the width of sidewalks, whether performers would impede public access to buildings, and parking availability. It ruled that the ban on all public performances in the CBD violated the Constitution as it did not take into account the factors mentioned above. At the end of the protracted litigation, Alexandria found it had to “pay the piper” as the Court ordered the City to reimburse Davenport’s attorney fees.
The beloved poet Whittier knew the power of the bagpipes when he wrote “The Pipes at Lucknow.” The poem was about a rebellion that broke out in India against the British. Civilians in and near the town of Locknow ran for safety to the compound known as “the Residency”. There, the rebels surrounded and besieged them for three months. The people knew that surrender was impossible as the rebels had recently massacred those who had surrendered in a neighboring city. As the siege dragged on, food, water and supplies were exhausted. Many fell sick and died. One morning, a feverish Scottish woman threw herself on the ground and yelled, “Dinna ye hear it?” Others rushed to her believing she had become delirious. But she insisted “Hear ye no MacGregor’s, the grandest o’ them all.” Finally, the others “fell silent” and heard at last as “rose and fell the piper’s blast . . . the piping of the clans.”
So, hats off to the Fourth Circuit Court of Appeals for rescuing the pipers. Perhaps one day, as I sit in court, withering under the attack of some insurance company lawyer’s malignant legal maneuvering, I will hear the strains of “Heiland Laddie” as a tartan-kilted piper bravely breaks out his pipes on the sidewalk outside. In fact, I should probably start taking my IPod to court, just in case the pipers are busy elsewhere when I need back up.
Monday, July 26, 2010
FORESHADOWING – ALISTAIR COOKE
August 1, 2010
In 2006, I wrote a Law Letter entitled “Parts is Parts” about the oral surgeon who had been arrested for stealing body parts to be used in transplant surgery. His activities took place in both New York and in Pennsylvania. A couple of days ago, the Pennsylvania high court upheld his 25-58 year criminal sentence for those crimes. One of the bodies that Dr. Mastromarino chopped up for resale was that of the renown journalist, Alistair Cooke, who died from cancer at the age of 95.
I have noticed the irony of circumstances that sometimes surround death. Louis XVI of France, wanting a more humane method of capital punishment, commissioned the committee that developed the infamous guillotine. It was to be the instrument of his death and that of his wife, Marie Antoinette. Both Thomas Jefferson and John Adams, fathers of our country, died on July 4th, the day we celebrate its birth. In more modern times, Truman’s Vice President, Alben Barkley, died moments after proclaiming in a speech that he would rather “be a servant in the house of the Lord than dwell in the house of the mighty.”
Although Alastair Cooke was British, he became well-known for of observations on American culture and history. Some of us also remember him from the Masterpiece Theater series. One of his pieces on America was entitled Decadence v Vitality. In it, he compared the United States to Rome in its latter days. Cooke argued that, like the Romans, Americans’ love of luxury and wealth portended our country’s decline.
I don’t know how Cooke’s family came to select the New York funeral home that was selling bodies to Dr. Mastromarino’s outfit. Nor do I know how the funeral director chose which bodies he would hand over to Mastromarino’s “cutters.” I also wonder whether the men who chopped him up knew the identity of their victim. They labeled his body parts with fictitious information, but they did this for all of their “donors.”
I do know the motive for Dr. Mastromarino’s actions. Before getting into the used parts business, he had been a successful oral surgeon. In 2002, the Dental Board pulled his license in connection with drug charges. Needing a new source of income, he quickly organized Biomedical Tissue Services and went to work. His henchmen would remove bones from cadavers and replace them with PVC pipes so that the family members would not discover his "harvesting" activities when they viewed the bodies at the funeral. Although making millions in his new business, Mastromarino wanted to reduce his costs to increase profits. He began working with crematoriums that didn’t care what happened to the bodies when the cutters were finished. The court reported that they would leave the leftovers to rot in an alley.
Mastromarino clung to his warped ways of thinking when he argued to the appellate court that his sentence was excessive. He said that the court should have considered the nature of the actions, not the number of violated bodies- sort of a “volume discount” sentence. I’m happy to report that the court didn’t buy his suggestion.
So it appears that Cooke’s concerns about American greed were well-founded. Mastromarino did not hesitate to disguise diseased, rotted tissues as “healthy” tissues to be used as transplants. At least one patient developed a Hepatitis B infection that she traces to a Biomedical Tissue Service product.
Although the mutilation of Cooke’s body serves to underscore the very American greed he railed against, I don’t know that greed has become more rampant in our country in the past several years. Our history is replete with fraudulent schemes of one sort or another. Thanks to journalists like Alistair Cooke, we may be more aware of the evil-doers, but they have plagued humanity since the early days of the snake oil salesmen who pandered worthless tonics to the sick and dying. I think it’s more important to look at our government’s reaction to the likes of Mastromarino. The courts of Pennsylvania and New York took appropriate steps to punish him and to make an example of him. Perhaps it is when government turns a blind eye to evil doers that we need to become alarmed. If so, we’re not there yet.
August 1, 2010
In 2006, I wrote a Law Letter entitled “Parts is Parts” about the oral surgeon who had been arrested for stealing body parts to be used in transplant surgery. His activities took place in both New York and in Pennsylvania. A couple of days ago, the Pennsylvania high court upheld his 25-58 year criminal sentence for those crimes. One of the bodies that Dr. Mastromarino chopped up for resale was that of the renown journalist, Alistair Cooke, who died from cancer at the age of 95.
I have noticed the irony of circumstances that sometimes surround death. Louis XVI of France, wanting a more humane method of capital punishment, commissioned the committee that developed the infamous guillotine. It was to be the instrument of his death and that of his wife, Marie Antoinette. Both Thomas Jefferson and John Adams, fathers of our country, died on July 4th, the day we celebrate its birth. In more modern times, Truman’s Vice President, Alben Barkley, died moments after proclaiming in a speech that he would rather “be a servant in the house of the Lord than dwell in the house of the mighty.”
Although Alastair Cooke was British, he became well-known for of observations on American culture and history. Some of us also remember him from the Masterpiece Theater series. One of his pieces on America was entitled Decadence v Vitality. In it, he compared the United States to Rome in its latter days. Cooke argued that, like the Romans, Americans’ love of luxury and wealth portended our country’s decline.
I don’t know how Cooke’s family came to select the New York funeral home that was selling bodies to Dr. Mastromarino’s outfit. Nor do I know how the funeral director chose which bodies he would hand over to Mastromarino’s “cutters.” I also wonder whether the men who chopped him up knew the identity of their victim. They labeled his body parts with fictitious information, but they did this for all of their “donors.”
I do know the motive for Dr. Mastromarino’s actions. Before getting into the used parts business, he had been a successful oral surgeon. In 2002, the Dental Board pulled his license in connection with drug charges. Needing a new source of income, he quickly organized Biomedical Tissue Services and went to work. His henchmen would remove bones from cadavers and replace them with PVC pipes so that the family members would not discover his "harvesting" activities when they viewed the bodies at the funeral. Although making millions in his new business, Mastromarino wanted to reduce his costs to increase profits. He began working with crematoriums that didn’t care what happened to the bodies when the cutters were finished. The court reported that they would leave the leftovers to rot in an alley.
Mastromarino clung to his warped ways of thinking when he argued to the appellate court that his sentence was excessive. He said that the court should have considered the nature of the actions, not the number of violated bodies- sort of a “volume discount” sentence. I’m happy to report that the court didn’t buy his suggestion.
So it appears that Cooke’s concerns about American greed were well-founded. Mastromarino did not hesitate to disguise diseased, rotted tissues as “healthy” tissues to be used as transplants. At least one patient developed a Hepatitis B infection that she traces to a Biomedical Tissue Service product.
Although the mutilation of Cooke’s body serves to underscore the very American greed he railed against, I don’t know that greed has become more rampant in our country in the past several years. Our history is replete with fraudulent schemes of one sort or another. Thanks to journalists like Alistair Cooke, we may be more aware of the evil-doers, but they have plagued humanity since the early days of the snake oil salesmen who pandered worthless tonics to the sick and dying. I think it’s more important to look at our government’s reaction to the likes of Mastromarino. The courts of Pennsylvania and New York took appropriate steps to punish him and to make an example of him. Perhaps it is when government turns a blind eye to evil doers that we need to become alarmed. If so, we’re not there yet.
Thursday, June 24, 2010
FREE SPEECH CAN BE EXPENSIVE
July, 2010
Someone gave me a little gray book of poetry when I was about 9 years old. One of my favorite poems from the book was entitled, “Three Gates.” Beth Day wrote the poem in the 1800’s. It encourages us to consider three “gates of gold” through which a tale must pass before it is retold: Is it true? Is it kind? And, is it necessary? For some reason, I thought at the time that it was excellent advice and I memorized the poem hoping that I’d never forget it.
I thought about that poem when I learned that President Obama had relieved General McChrystal of his post in Afghanistan. The incident raised many questions. First, what exactly did the General say? Having combed through the article in the Rolling Stone magazine, I found that he accused Vice President Biden of being “shortsighted.” He then criticized Ambassador Eikenberry for “covering his flanks for the history books.” Finally, he stated that he found the three month delay in getting authorization for more troops to be “painful.” The General’s aides claim that he made other inflammatory comments including the infamous “wimps in the White House” remark, but surely the General isn’t being hung out to dry over what a reporter heard someone say that the General said.
Another question that came up was whether making these comments was illegal and, if so, whether muzzling such statements is unconstitutional. Trying to find the answer to those questions led me to the discovery of Article 88 of the Uniform Code of Military Justice. That law prohibits “any commissioned officer” from using “contemptuous words” against various public officials, including the President and the Vice President. (For some reason, the lawmakers also extended special protection to the Secretary of Transportation as well. I have no idea how that came about, unless he or she is the person responsible for the horrendous traffic in Washington D.C.).
Our Supreme Court has issued numerous rulings upholding laws that restrict the constitutional rights of those in the military, including the right of freedom of expression. One such case was Parker v. Levy (1976). The defendant in Parker was an Army physician who publicly urged African American men to disobey orders to go to Viet Nam. He also referred to members of the Special Forces as “liars and thieves” and “murderers of women and children.” The military court-martialed the defendant for his actions and comments.
On appeal, the Supreme Court noted that “the military is, by necessity, a specialized society separate from civilian society . . . [T]he military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. “
The Court then noted that there were valid reasons for refusing to grant First Amendment protections to those serving in the military. It quoted part of an opinion from the U.S. Court of Military Appeals saying:
“Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities . . . In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.”
These statutes and cases make it clear that it is not appropriate for a General to verbally attack his Commander in Chief. Yet, many questions remain. Why did the General make the comments to a reporter? Why did his staff feel free to make even more egregious comments on the record? What reaction did the General expect from Washington when the comments hit the press?
Most likely, General McChrystal is no longer in the mood to do much talking to the press and we will never know the answers to those questions. But it is tragic that his comments wrecked an otherwise stellar career. It is indeed ironic that he was punished, in part, for his comments about Joe Biden, who is known by some as a “verbal wrecking crew.”
So, I think again about that poem – and realize that I probably shouldn’t have said that about Joe Biden.
July, 2010
Someone gave me a little gray book of poetry when I was about 9 years old. One of my favorite poems from the book was entitled, “Three Gates.” Beth Day wrote the poem in the 1800’s. It encourages us to consider three “gates of gold” through which a tale must pass before it is retold: Is it true? Is it kind? And, is it necessary? For some reason, I thought at the time that it was excellent advice and I memorized the poem hoping that I’d never forget it.
I thought about that poem when I learned that President Obama had relieved General McChrystal of his post in Afghanistan. The incident raised many questions. First, what exactly did the General say? Having combed through the article in the Rolling Stone magazine, I found that he accused Vice President Biden of being “shortsighted.” He then criticized Ambassador Eikenberry for “covering his flanks for the history books.” Finally, he stated that he found the three month delay in getting authorization for more troops to be “painful.” The General’s aides claim that he made other inflammatory comments including the infamous “wimps in the White House” remark, but surely the General isn’t being hung out to dry over what a reporter heard someone say that the General said.
Another question that came up was whether making these comments was illegal and, if so, whether muzzling such statements is unconstitutional. Trying to find the answer to those questions led me to the discovery of Article 88 of the Uniform Code of Military Justice. That law prohibits “any commissioned officer” from using “contemptuous words” against various public officials, including the President and the Vice President. (For some reason, the lawmakers also extended special protection to the Secretary of Transportation as well. I have no idea how that came about, unless he or she is the person responsible for the horrendous traffic in Washington D.C.).
Our Supreme Court has issued numerous rulings upholding laws that restrict the constitutional rights of those in the military, including the right of freedom of expression. One such case was Parker v. Levy (1976). The defendant in Parker was an Army physician who publicly urged African American men to disobey orders to go to Viet Nam. He also referred to members of the Special Forces as “liars and thieves” and “murderers of women and children.” The military court-martialed the defendant for his actions and comments.
On appeal, the Supreme Court noted that “the military is, by necessity, a specialized society separate from civilian society . . . [T]he military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. “
The Court then noted that there were valid reasons for refusing to grant First Amendment protections to those serving in the military. It quoted part of an opinion from the U.S. Court of Military Appeals saying:
“Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities . . . In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.”
These statutes and cases make it clear that it is not appropriate for a General to verbally attack his Commander in Chief. Yet, many questions remain. Why did the General make the comments to a reporter? Why did his staff feel free to make even more egregious comments on the record? What reaction did the General expect from Washington when the comments hit the press?
Most likely, General McChrystal is no longer in the mood to do much talking to the press and we will never know the answers to those questions. But it is tragic that his comments wrecked an otherwise stellar career. It is indeed ironic that he was punished, in part, for his comments about Joe Biden, who is known by some as a “verbal wrecking crew.”
So, I think again about that poem – and realize that I probably shouldn’t have said that about Joe Biden.
Saturday, March 13, 2010
Food Fight
When I’m confronted with frightening challenges that seem insurmountable, I often think about Grandmother Sally. More times than I can count, a glance at her photograph on the bookcase has given me the knowledge that I will be able to handle whatever obstacles are blocking my path. Since the economy crashed last year, I’ve looked at that portrait often.
One of six children, “Sally Mary” grew up on a farm in Nansemond County, Virginia, near the North Carolina line. As was typical of young farm girls of the time, she left school at an early age to stay home and help with chores. Apparently, she wasn’t a fan of the country life as she moved away from home as a teenager to start anew in the city. In Raleigh, North Carolina, she landed a job as a maid in one of the larger hotels. She must have heard that there were more opportunities up north, because she soon relocated to Richmond, Virginia, where she worked in the John Marshall Hotel. There she met my Grandfather, a hotel clerk.
Over the years, the couple had three daughters, the youngest of whom was my mother. When mother was about five years old, her parents’ marriage broke up. I’m not entirely sure what caused the break up, as people didn’t talk about such things in those days. I do know that in the throes of our nation’s Great Depression, Sally Mary found herself in the big City of Richmond trying to support three children with no job and an eighth grade education.
She had learned from her early years as a hotel maid that she could not earn enough to take care of the family if she worked for someone else. She believed she could succeed only if she were self-employed. Somehow, she got together enough money to open her own beauty salon. An excellent cook, she later opened the “Tea Room”, a popular, uptown restaurant. At the end of the day, she had not only provided for her children during hard times, but she managed to leave an estate that helped take care of her ten grandchildren. She believed that a college education was crucial. My mother’s share of the estate paid for my first two years at Westhampton College.
Growing up, we heard many stories about Sally Mary, but the one I think of most often was the one about the food fight. One evening, as Grandmother was preparing dinner, she went to get an egg from the refrigerator. She planned to use the egg to dress up a sauce she was making. My mother saw that Sally Mary had taken the last egg from the ice box.
“You can’t use that egg for sauce,” she objected. “It’s the last one we have. We’ll need it for breakfast in the morning!” A fierce argument ensued. In the end, that night’s entrée was accompanied by a delicious sauce.
I think about that story often these days. Like most Americans, I’ve never experienced a financial “slow down” as dramatic as this one. Sometimes, I find myself worrying about how long it will drag out and how much financial damage it will cause me and the people I care about. Then I think about Grandmother’s attitude about that egg.
With little education, training or experience, and no financial help from the government or anyone else, she faced down a national economic disaster that threatened her and her three children. Hard work and an unshakable confidence that she could succeed paid off. She didn’t hesitate to use that last egg. She knew she could always find a way to provide for the ones she loved. And well she did. Thanks, Sally Mary, for everything.
Thursday, January 28, 2010
An Armchair Psychologist's Thoughts About Guilt
Many of my clients are innocent people who have been injured. Some have been in car wrecks. Others are hurt in accidents at work. Some are good employees who’ve been fired.
Regardless of the type of problem they are facing, I’ve noticed that most of these folks spend a lot of time trying to figure out what they did to cause the mess they are in.
A woman who was rear-ended at a stop light tries to figure out how she could have avoided getting hit by a speeding truck. “Maybe if I’d been looking in the rear view mirror, I’d have seen him coming and blown my horn. Then he might have stopped.” Another woman who was attacked by a man lurking in a park said, “If I had looked behind that building before I walked by, I might have seen him hiding there.” Yet, another client said, “I should have known my boss was going to falsify those reports. I could have avoided all of this if I had taken a copy of the originals home with me.”
Society has conditioned us to “blame the victim.” Shortly after the earthquake in Haiti, I read an article claiming that geologists had warned the Haitian government of an impending quake. Apparently, the Haitians brought all this misery on themselves by ignoring the scientists. They should have just moved out before the quake. After all, we would have welcomed them here in the U.S.
But there is more to this than an ingrained knee-jerk reaction to disasters. We want to think that our behavior caused our problems. Because we can control our behavior, we can prevent impending doom by changing our behavior. This way, we gain a false sense of control over our future.
It seems that the more damage a person has sustained, the more drastic steps that person will take to gain a sense of control over the future. Rape victims I’ve represented turn to psychics to predict, and thereby control, the future. Abuse victims join cults whose leaders assure them that their obedience to cult rules will protect them from future harm.
We can’t seem to acknowledge the fact that, no matter what precautions we take, none of us is getting out of this alive. Bad things will happen to us no matter what we do. We need to quit blaming ourselves when things go wrong and spend more time focused on doing better and helping others. C’mon, folks, give yourselves a break.
Regardless of the type of problem they are facing, I’ve noticed that most of these folks spend a lot of time trying to figure out what they did to cause the mess they are in.
A woman who was rear-ended at a stop light tries to figure out how she could have avoided getting hit by a speeding truck. “Maybe if I’d been looking in the rear view mirror, I’d have seen him coming and blown my horn. Then he might have stopped.” Another woman who was attacked by a man lurking in a park said, “If I had looked behind that building before I walked by, I might have seen him hiding there.” Yet, another client said, “I should have known my boss was going to falsify those reports. I could have avoided all of this if I had taken a copy of the originals home with me.”
Society has conditioned us to “blame the victim.” Shortly after the earthquake in Haiti, I read an article claiming that geologists had warned the Haitian government of an impending quake. Apparently, the Haitians brought all this misery on themselves by ignoring the scientists. They should have just moved out before the quake. After all, we would have welcomed them here in the U.S.
But there is more to this than an ingrained knee-jerk reaction to disasters. We want to think that our behavior caused our problems. Because we can control our behavior, we can prevent impending doom by changing our behavior. This way, we gain a false sense of control over our future.
It seems that the more damage a person has sustained, the more drastic steps that person will take to gain a sense of control over the future. Rape victims I’ve represented turn to psychics to predict, and thereby control, the future. Abuse victims join cults whose leaders assure them that their obedience to cult rules will protect them from future harm.
We can’t seem to acknowledge the fact that, no matter what precautions we take, none of us is getting out of this alive. Bad things will happen to us no matter what we do. We need to quit blaming ourselves when things go wrong and spend more time focused on doing better and helping others. C’mon, folks, give yourselves a break.
Saturday, January 9, 2010
Red Dot Sanctions
RED DOT RESULTS IN HIPAA SANCTIONS
Most health care providers and attorneys have worked diligently to achieve compliance with new federal privacy standards known as the "HIPAA" regulations. Sadly, one dentist's office didn't get the memo. The office had placed a large red dot on the outside of a patient's chart. On the red dot, in black ink, were the letters: "AIDS." Predictably, federal agents sanctioned the office.
I've seen my chart at the local hospital where I tend to end up every few years. In large red magic marker letters is the message:
"Don't Give This TRIAL LAWYER Codeine!!!”
The notation is doubtless in response to numerous episodes in which nurses have given me codeine despite my insistence that the drug will make me very, very sick. The nurses usually try to assure me that the particular pill they are offering doesn’t contain codeine. I then pull out my pocket copy of the latest drug reference book to show them that Percocet actually does have codeine in it. This tends to have a calming effect on both the nursing staff and the risk management officer who, by this time, has been called in.
After my most recent encounter with the drug, masquerading as hydrocodone, I apparently made some comments that upset the medical staff. Hence my “red dot.”
If there are any HIPAA police reading this, PLEASE do not make the doctors remove the warning from my chart. They put it there with my consent.
Most health care providers and attorneys have worked diligently to achieve compliance with new federal privacy standards known as the "HIPAA" regulations. Sadly, one dentist's office didn't get the memo. The office had placed a large red dot on the outside of a patient's chart. On the red dot, in black ink, were the letters: "AIDS." Predictably, federal agents sanctioned the office.
I've seen my chart at the local hospital where I tend to end up every few years. In large red magic marker letters is the message:
"Don't Give This TRIAL LAWYER Codeine!!!”
The notation is doubtless in response to numerous episodes in which nurses have given me codeine despite my insistence that the drug will make me very, very sick. The nurses usually try to assure me that the particular pill they are offering doesn’t contain codeine. I then pull out my pocket copy of the latest drug reference book to show them that Percocet actually does have codeine in it. This tends to have a calming effect on both the nursing staff and the risk management officer who, by this time, has been called in.
After my most recent encounter with the drug, masquerading as hydrocodone, I apparently made some comments that upset the medical staff. Hence my “red dot.”
If there are any HIPAA police reading this, PLEASE do not make the doctors remove the warning from my chart. They put it there with my consent.
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