The Importance of Visualization - Oct. 2012

I’ve enjoyed listening to Earl Nightengale since I was a little girl.  Recently, I treated myself to an hour of simply thinking about his book, “The Strangest Secret.”  In it, he mentions the importance of setting a goal and visualizing yourself achieving the goal.  As I tried to imagine myself playing Grandjanay’s Aria, Classic Style, on my harp to a sold out audience at Carnegie Hall, a different and dreadful image came uninvited into my fantasy.  As I stared at the apparition, I realized that I had given a client some very bad advice.  Because I had failed to visualize him after he implemented my recommendations, I may have led him into grave error.

My client is a dentist of Scottish descent.  He called to ask about wearing a kilt to work.  As I used to be a professional tartan weaver, he wanted my advice on the choice of tartan.  He also wanted the names of a couple of skilled kilt makers.  I enjoyed talking with him about tartans, kilts, and kilt makers.  It then occurred to me that I’d better remind him to get a sporran to go with his kilt.  For those of you who may not be familiar with Highland dress, the sporran is the equivalent of the Scottish warrior’s briefcase or back pack.  It is a pouch, often made of leather and fur with tassels.   Depending on the ferocity of the wearer, it may have daggers or a dead animal’s head attached.  It hangs in the front and center of the kilt from the Scotsman’s belt on a chain.  Historically, its purpose was to “protect that which needs protecting.”  A kilted man without his sporran is like a football player without a helmet.  It just isn’t done.

Although I had given my client excellent advice on the wearing of Highland attire, I had failed to visualize him wearing a kilt at work.  Imagine that you are patiently sitting in your dentist’s operatory.  You are wearing an uncomfortable paper napkin around your neck.  You are staring at the drills and picks that are about to be used to make holes in your teeth and gums.  You’re also anxious about the price of the visit and radiation exposure from the mandatory x-rays.  There is just enough time for your anxiety to max out before you hear the dentist coming into the room.

You think you know what to expect when you turn to greet your doctor.  A clean, starched white lab coat will cover an equally clean white shirt and tie.  Spit shined shoes will peek out from sharply creased slacks that probably didn’t come from any warehouse.  But today, because the dentist’s lawyer failed to visualize your welcoming experience, you are about to get a disconcerting surprise.

You turn toward the door, already smiling, to say “Hello” to your dentist.  But something is wrong.  He still has the white lab coat and spotless shirt, but the trousers have been replaced with a brightly colored, pleated skirt.  Two boney knees protrude from below the kilt.  Below the knees, “flashers” fly out from the knitted socks like small flags hanging half-mast from poles in front of government offices.  Instead of the dentist’s shining wing- tipped shoes, you see shoes that could be worn by a male dancer of some sort.  But, to be honest, the object that has seriously captured your attention is the furry sporran hanging from the dentist’s belt. 

If you’re like me, you may have entered the dentist’s office with an anxiety level of 7 on a scale of one to ten.  But now, facing a Highland warrior in a lab coat wearing a dead animal head on his sporran, your anxiety level has jumped a few hundred points.  To make matters worse, being a polite person, you remember the instructions your mother gave you when you were a child captivated by the sight of an unusual person.  You must “Stop staring!”

Imagining the impact of my client at work in full Highland regalia, I remembered the last “casual Friday” we ever had at my office.  I wore my favorite tee shirt.  It warns, “Mess with Me and You Mess with the Whole Trailer Park.”  I was working on a lease agreement when my secretary announced that there was a potential client who wanted to see me.  Tragically, the lady’s son had been killed when an 18 wheeler crashed head-on into his car on Interstate 40.  She needed a lawyer.  Although she did not have an appointment, I wanted to see her.

Jeannie showed the lady into our conference room.  I stood up to introduce myself, but after taking one look at my tee shirt and scruffy jeans, she shook her head and said she needed to think about hiring a lawyer.  I watched as the biggest case of the year walked hurriedly out of the office.  That “casual Friday” cost me several hundred thousand dollars. 

So, I agree with Mr. Nightengale.  Visualization is a key step to success.  I need to call my client about that kilt.  That fur covered sporran is probably an OSHA violation.

Want to go Broke? September, 2012

A few Saturdays ago, I took the day off to study unemployment compensation law.  I had been looking forward to it all week.  I was on the verge of figuring out the 100 day rule, when someone started banging on the front door.  Wishing I had a bazooka handy, I stormed toward the source of the racket. On the front porch stood a thin man who appeared to be in his twenties.  Either he had just finished doing some yard work or he was trying out for the part of PigPen in this year’s Charlie Brown Christmas play.  He stated that he was a tree trimmer and would be happy to cut down some of the dead trees on my lot for a reasonable price.  I explained to him that I needed the dead trees for my annual Halloween party.  I told him to watch his step as he was leaving.

I don’t like door to door salesmen.  I have even put a “No Solicitors” sign up in front of the house.  Although the sign has scared off a few English lawyers, it hasn’t kept away  the magazine hawkers, yard men, painters and other aggravations that I had hoped would buzz off.  Perhaps I need to get a new sign that says, “Salesmen Will Be Shot.”  For those of you who think I’m being too harsh, let me tell you about a few cases I’ve stumbled across involving door to door painters, tree trimmers, and gutter cleaners.

Any case that begins by identifying the plaintiffs as somebody’s “widow and children” is not going to be a happy tale and the Shaw case is no exception.  Mr. Shaw was a self-employed house painter.  He had come to Ms. Watson’s house to give her a quote on doing some painting for her.  While there, he offered to clean the gutters. 

Had Ms. Watson been a wiser homeowner, she would have asked for proof that Mr. Shaw had workers’ compensation insurance.  However, she simply agreed to pay him to clean the gutters and went back to her housework.  Soon, a “tremendous noise” came from the area where Mr. Shaw had begun working.  His ladder had fallen, throwing him onto a concrete porch.  He died from his injuries about three months later.

The widow and children sued Ms. Watson.  They alleged that her failure to properly maintain her house caused the accident.  They said she had allowed her gutters to fall into disrepair as they were not securely fastened to the fascia board.  Also they claimed that she had failed to replace the aged and brittle shingles on her roof.  Finally they said that the roof was too steep and the concrete porch was slippery.

Meanwhile, Ms. Watson’s homeowner’s insurance denied coverage because Mr. Shaw was working for Ms. Watson when the accident occurred.  The homeowner’s policy did not cover persons injured while providing “professional services.”

In a similar case from California, an injured tree trimmer stated that the homeowner had violated the state Labor Code by hiring an unlicensed contractor.  As several people were working on the homeowner’s project, the tree trimmer claimed that the homeowner should have purchased his own worker’s compensation coverage.  Finally he argued that the homeowner had violated OSHA safety working standards.  The case tied up the California courts for many years.

Even if you’re lucky enough to find a court that makes your homeowners’ insurance pay the injured handyman, you might not have enough insurance coverage.  Assume our gutter man, Mr. Shaw, was the sole support of a wife and three children and was in his twenties when he fell off the rickety roof.  Had he not fallen, he would have been able to work another 40 years to provide for his family.  If he was making $25,000 per year, his lost wages alone would total one million dollars.  Add pain and suffering, medical bills, his wife’s loss of her able-bodied companion, and you have a multi-million dollar claim.

Now, assume your gutter cleaner falls because your not-so-friendly Rottweiler knocked over the ladder while trying to kill the man.  You know which dog I mean.  He’s the reason you have a large “Beware of Dog” sign in the front yard.  (Plaintiff’s Exhibit A).  At this point, because you did not keep your dangerous dog under control, you face a claim for punitive damages.  Add another $250,000 to the claim of the widow and children.

The last door to door guys I hired were house painters.  The morning they showed up to work, I noticed a strong odor of Kentucky bourbon coming off the painter who staggered past me as he was heading for a ladder.  I asked the foreman if the man had been drinking.  “Of course he’s been drinking,” he answered.  “He’s terrified of heights.  Getting him drunk is the only way we can get him up there.”  Having already paid the painters, with no refund in sight, I could only go back inside to begin my prayer vigil.

So, now you know why I have the “No Solicitors” sign up in the front yard. And why the house needs painting.  And why the gutters are clogged up.  And why I have dead trees in the yard.

I Scream, You Scream, We All Scream for Ice Cream - August 2012

I have many fond childhood memories of ice cream shops.  They were cool, well lit and sparkling clean.  The hypnotic hum of the hypnotic ceiling fans, the delicious smell of fudge, bananas, and chocolate, and the menus featuring photos of tantalizing sundaes, splits, and shakes were almost more than my excited senses could handle.  While waiting to be served, my friends and I would entertain ourselves by spinning around on the bright red barstools.  We’d spin them around faster and faster, until an adult came ‘round to spoil the fun.  Little did we know that we may have been contributing to serious personal injuries.

 

In September of 1971, two ladies decided to escape the North Carolina heat by having lunch at a Durham ice cream shop.  Other customers had already filled the booths, so the pair took a place at the counter.  As one of the ladies sat on the bar stool, its seat flipped and threw her onto the floor injuring her back.  After helping the lady to her feet, the store manager apologized and told her to send him the medical bills.  Things apparently escalated from there because six years later, our State Supreme Court gave its opinion concerning the liability of the store for the lady’s injuries.

The defendants maintained that they were not liable for the malfunctioning stool.  They  admitted that the stools were defective when they were first installed, but claimed that they had been repaired.  The store management said it had no problems with the stools after the repairs.  Despite this testimony, the Court ruled that the store’s own employees may have provided the evidence the plaintiff needed.

The customer testified that when she returned to the store with her doctor bills, the assistant manager told her that the store had been “having problems with the stools, and that the children came in and turned the tops.”  She allegedly told the customer that she had asked the company that made the stools to fix them but that they hadn’t “done anything about them.”  The Court ruled that if the assistant manager made such statements, they would be sufficient evidence of the store’s liability.  The statements  showed that the store knew or should have known of continuing defects in the counter stools.

This case points to the need for all businesses, no matter how small, to have risk management policies.  A good policy would:

1.       Instruct employees how to respond to incidents including injured customers,

2.       Explain the need to document an incident at or near the time it occurs,

3.      Describe how to preserve evidence concerning incidents, and

4.      Tell employees how to notify appropriate personnel when an incident takes place.

In the ice cream parlor case, employees should have provided first aid to the customer after she fell.  Management should NOT have agreed to pay the customer’s medical bills.  At the time the store manager made that offer, he could not have known the extent of the medical bills.  Nor did he know whether the customer had a pre-existing back condition that would make the customer more susceptible to an injury to her back.  Finally, he did not know whether making the offer to the customer would cause the store’s insurance company to decline coverage.

The employees who witnessed the accident should have documented it shortly after  they knew the customer was medically stable.  They should have taken photographs of the broken stool and the location in the store where the customer fell.  They should have recorded the date and time of the incident as well as the names and contact information of any employees who witnessed it.  They should have recorded the extent of the customer’s injuries at the time she fell including any statements she made about what happened or whether she was hurt.  They should certainly not have discussed previous problems with the bar stools.

Management should have stored the broken stool in a secure location in the store so that it would be available to their insurance carrier if needed.  Finally, management should have notified the carrier as soon as possible and should have documented this notification.  Failure to notify an insurance carrier of potential liability can result in loss of insurance coverage.

As a kid whirling around on the shiny red stool, I had no idea of the dangers and pitfalls associated with bar stools.  Now, I see them as potential disaster areas.  That’s probably why I always choose a booth!

No More Mr. Nice Guy - July 2012

When I first read the regulations known as “HIPAA,” I worried about the stiff penalties that could be leveled against health care providers.  Apparently, I wasn’t the only one who thought the penalties were draconian.  To calm all of us “worriers” down, the government issued publications assuring us that the HIPAA police were there to help us come into compliance and not to penalize us.  Now, it is clear that things have changed.

A few years ago, two doctors opened a cardiac surgery clinic.  It was a small operation.  It got a lot smaller this year after the clinic had to pay a $100,000 HIPAA fine.  I’m sure the doctors also paid out many thousands of dollars to the lawyers who represented them during the HIPAA investigation – not to mention the cost of the time taken from their practice as they responded to the government investigation.  Reading the “Resolution Agreement” between the government and the doctors, I could see how easily any small practice could fall victim to a similar fate.  This is how it began.

In an effort to provide better patient care and more efficient services, the practice contracted with an Internet scheduling company so that patients could check the office surgery schedule on-line.  I’m sure that the doctors assumed that the service provider was aware of HIPAA and had taken necessary steps to provide security for the patient information posted on the surgery schedule.  Unfortunately, the clueless company made the on-line scheduling information available to the public.  Even worse, the doctors didn’t think about requiring the Internet company to sign a Business Associate Agreement.  HIPAA requires covered health care providers to have these agreements with people working for them who have access to patient information.  The contracts require those persons to treat the information confidentially.

Eventually, a patient learned that the “confidential” scheduling information was available to the general public and the HIPAA police rode in like the US Calvary in some corny western.  Like the Calvary, they destroyed the enemy.  Not a shot was fired, but the big guns of the U.S. government took their toll.

Ask yourself the following questions to see if you are also at risk for a HIPAA attack:

1. Do I have a signed business associate agreement with every person or business  who has access to patient information in my possession?  For example, has my lawyer signed a business associate agreement?  My accountant?  My IT company?
2. Have I provided HIPAA training to each of my employees who has access to patient information?  Do I have documentation of that training?
3. Have I identified a “Security Official” and a “Privacy Officer” at my office?  Is that in writing?
4. Do I have a written “Risk Assessment Process?”  Have I conducted a “risk assessment” to identify potential problems with maintaining privacy of patient information?  Is that assessment in writing?  Is it regularly updated in writing?  Does it contain an inventory of every system in the office that stores patient information?  Does it identify risks relating to each system?  
5. Do I ever email patient charts?  If so, are those emails encrypted?

The HIPAA police also discovered that the clinic sometimes emailed confidential patient information to its doctors’ private email accounts.  This might happen if a physician got a call about a patient in the middle of the night.  The doctor might need to see the patient chart to respond to an emergency.  He could access it on his home computer.  The clinic had not given any thought to insuring the security of those home computers.

It is very important to be especially careful about patient information that your employees access away from the office.  Are your employees sending emails and texts to patients?  Is the content of the email or text put into the patient’s file?  By whom?  How quickly?  Are you sure that the cell phones your employees use to send those emails or texts are password protected?  Are your employees able to access patient information on their home computers?  What do you know about the security of those computers?

In my humble opinion, technology has rendered privacy illusory.  My mother’s advice remains the best I’ve heard concerning privacy.  She used to say, “Don’t ever do or say anything you would regret reading about on the front page of the News and Disturber!”