God Stop

Young lawyers quickly learn that Clerks of Court know more law than many law professors.  Accordingly, when I began my law practice, I would occasionally call our local Clerk if I couldn’t find the answer to a thorny problem. 

One day, I came up with a way to resolve an estate issue with minimal time and effort on my part.  It would save me a great deal of aggravation and would save my client significant money.  But as I considered my brilliant idea, a feeling of foreboding came over me.  I began to wonder why no other lawyers had come up with my genius plan.  Something was wrong, but I couldn’t put my finger on it.  That afternoon, I happened to be in Hillsborough and decided to drop by the Clerk’s office.

As I explained my plan to the Estate Clerk, she shook her head in dismay.  She said the idea was a “No-No.”  “A ‘no-no’?” I asked.  “Yes,” she answered. “Could even get you sued.”  She then went through a lengthy explanation, citing the Code Hammurabi, Mordecai’s Law Lectures, and the British common law as to why my plan would not fly.  Dismayed, I mentioned that I had a feeling I was going to get into trouble with that idea.  “You just had a ‘God Stop’”, she said.  “It’s when God sends a message to you to stop.  Be alert to those feelings and trust them.”

Many years later, I had been exploring hand weaving.  One summer, members of a Scottish clan – let’s call it “Clan X” – asked me to demonstrate tartan weaving at their annual gathering.  I agreed and began to research the clan.  To my delight, I found the pattern for the clan’s tartan.  It was beautiful.  How awesome it would be to weave the clan’s own tartan at their gathering.  In fact, I could weave up some clan scarves to sell there.  About then, the old foreboding hit.  Paying attention to the “God Stop,” I looked more carefully at the pattern.  It was a new tartan.  More research indicated that it was copyrighted in the U.S.  Not wanting to get sued, I dropped my get rich quick scheme and put an older tartan on the loom to take to the gathering.

I had barely set up my weaving demo when an irritating, officious looking woman stormed into my booth accompanied by two grumpy men.  “What tartan are you weaving?” she rudely demanded.  “Good morning to you as well,” I replied.  “This is the Ancient Napier tartan.  Isn’t it lovely?”  She glared and responded, “You’re lucky it’s not the Clan X tartan. Part of my job for the Clan is to be sure no one violates our copyright.  If you had been weaving our tartan, you would be in big trouble right now.”  I thanked her for her warm welcome and excused myself to tend to my exhibit.  She appeared pretty frustrated to have failed in her plan to trap an unwary weaver.  She made a critical comment about the quality of my work and stormed off.

Fortunately, the remainder of the day was great.  I found the other members of Clan X to be friendly and charming.  I sold most of the weaving I had brought to the gathering and had almost forgotten the snarky copyright cop as I began packing up my loom and shuttles.  Then, hearing a commotion, I looked up.  There she and her buddies were again – this time looking a bit uncomfortable.  “We were wondering if you’d be willing to weave some Clan X tartan for us.  We’ve had to special order it from Scotland.  It’s a rare tartan and they don’t typically offer it for sale.  It takes them forever and we have to deal with customs.  We noticed that you weave tartan placemats.  We haven’t been able to find placemats in our tartan at all.”

Although I was glad that the quality of my weaving had miraculously improved, I explained that I was already swamped at work.  I would not be able to take on another project any time soon.  I thanked them for their interest and quickly headed back to Chapel Hill.  On the way home, I said a prayer of thanks for the “God Stop” that may have saved me from a copyright infringement lawsuit.  I also offered up a prayer of thanks for the Clerk who gave me some good advice all those years ago.

Communication Failure - Angus Part 3

Earlier that day, I had picked up a manikin from my weaving store.  We no longer needed him at the store, but I hadn’t decided what to do with the “dummy.”  I had grown fond of him over the years and had named him Angus.  He looked like a ferocious warrior in his regimental jacket and Prince Charles Edward Stewart kilt.  Selling him seemed like a betrayal after all we’d been through together, but there was no place to store him at home.  And he certainly didn’t belong in an uptown law office.  There was some space in the janitor’s cleaning supplies closet, so with deepest apologies, I wedged Angus in the dirty room in front of the upright vacuum cleaner.  I didn’t want him to frighten the janitor, so I put a warning sign on the outside of the closet door.  It stated, “Manikin in closet.”  I had considered putting up a sign that said, “Dummy in closet,” but I feared the janitor might take it the wrong way.

As the day wore on, I forgot about Angus.  Because of constant interruptions, I had not finished a brief due at the Court of Appeals.  The deadline for filing was the next day.  Frustrated, I had no choice but to stay late to complete the brief.

I worked my way through law school as a janitor/maid for a home and a couple of office buildings in Chapel Hill and Carrboro.  Back then, banks did not consider young, female law students to be a good credit risk, so there were no student loans available.  I really grew to hate the job.  I didn’t mind emptying the trash or the vacuuming or dusting.  But at the end of the day, cigarette butts and ashes emit a nasty stench that would stick to me   no matter how carefully I cleaned the ashtrays.   Dirty bathrooms acquire equally offensive odors and stains that assault both the eyes and nose.  Cleansers reek of chlorine and always managed to get on my clothes.  Those years taught me to have great sympathy for the cleaning crew.

My law office janitor was an elderly scarecrow of a man with toothpick arms and legs. A graying stubble always shadowed his face.  His overalls covered dirty, ragged shirts and his well-worn boots were splattered with splotches of paint.  I never knew much about him, but he always seemed hyper-active and a bit jumpy.  He never smiled, but knowing the joys of his profession, I didn’t take his grumpiness personally.  

As my office was in downtown Chapel Hill, I didn’t feel very safe working alone after dark.  Wanting to finish the brief and get home as soon as possible, I was totally focused on my work when the janitor arrived.  Concentrating on my brief, I didn’t hear him come in the office, walk down the hall, or open the door to the cleaning supplies closet.  But I certainly heard the blood-curdling scream that followed when he ran into Angus. 

My first thought was that a deranged criminal was gutting someone with a serrated butcher knife.  Total panic set in as I imagined the bloody scene that must be taking place just down the hall.  I desperately wanted to call for help, but couldn’t think of the phone number for 911.  To add to my confusion, the scream was quickly followed by a long stream of high pitched cussing.  It was then that I recognized the voice of the janitor.  Fearing that he must be having some sort of a seizure, I rushed out to help.

He trembled with anger as he stood screaming at me.  His death grip on the closet door was probably the only thing that kept him from collapsing.  I was afraid of getting too close as he was clearly in a rage. A collection of dangerous brooms and mops were at his right hand.

As he continued to curse at me, I figured out that he had not expected to find a huge, menacing Scotsman facing him when he opened the closet door.  When the yelling finally quieted somewhat, I asked him why he had not read the sign on the door?  It clearly stated, “Manikin in closet.”  In reply, the janitor asked, “What the  **** is a ** *** manikin?”  Thankfully, I caught myself before answering, “It’s a dummy.”  I just pointed at Angus and said, “That’s a manikin.” 

I stumbled back into my office and looked at the brief.  I was still shaking from the encounter with Angus and the janitor and I knew that I probably couldn’t finish anything that night.  But, I decided to read the brief once more before going home.  It was then that I noticed all the “henceforth’s”, “whereas’s,” “heretofore’s” and “thereto’s” scattered across the pages. 

I had learned an important lesson that night.  When trying to communicate, it’s important to choose words that your reader can understand.   I took a few minutes to delete all the legalese I could find in the brief.  I certainly didn’t want to confuse the Court of Appeals.  Perhaps the brief would even be good enough that I could take another “win” with me as I went into the “hereinafter.”  And, I really needed to find Angus a home.

Patterns - HIPAA Prosecutions Increase

Usually I love patterns.  Quilt patterns, weaving patterns, and patterns in math and science fascinate me.  “The Code” is a BBC television show that explores patterns in nature.  It has captivated me for hours.  (I know there were only three shows, but I found the reruns on YouTube).  If you study a pattern, you can often predict what will happen when you next see that pattern.  For example, if you notice a State Trooper parked on the side of I-40 and you see that you are going over 80 mph, it’s likely that you will next see flashing lights, hear a siren, and be relieved of a substantial amount of cash.  Recently, I found an even more upsetting pattern while studying HIPAA prosecutions.

In 2005, North Carolina passed a law that requires all businesses to notify customers when the business suffers a security breach of customer information.  In 2009, the federal government passed a similar law requiring health care providers to notify patients of security breaches affecting patient information.  Providers must also report certain breaches to the federal government.  The law gave state Attorneys General authority to prosecute HIPAA violations.

In 2010, a Massachusetts hospital hired a company to erase computer tapes with medical information on 800,000 patients.  It shipped several boxes of the unencrypted back-up  tapes to the company.  Only one of the boxes arrived at its intended destination.  No one ever found the other boxes.  In compliance with breach notification laws, the hospital reported the breach to the government.  The state Attorney General’s office responded by initiating a HIPAA prosecution against the hospital.  Eventually, the case settled for $750,000 in penalties. 

In another case, thieves stole a laptop containing unencrypted patient records maintained by a Massachusetts Eye and Ear Clinic.  After the clinic filed a breach report, the HIPAA police fined the clinic $1.5 million and required it to retain an “independent monitor” of its security practices.  The clinic had never conducted the security risk analyses required by HIPAA.  Its policies governing portable devices were “inadequate.”

BlueCross BlueShield of Tennessee also felt the sting of a breach report.  On 57 unencrypted hard drives, the company had recorded customer service calls that included patient names, Social Security numbers and medical information.  BCBS stored the hard drives at a leased facility.  Thieves stole the drives.  As required by law, BCBS filed a breach notification report.  The HIPAA police rode onto the scene and hit the company with a $1.5 million penalty.  BCBS must also meet numerous administrative requirements in the future.  

Apparently, the federal government is even willing to go after state agencies for HIPAA violations.  The Alaska Department of Health and Social Services filed a breach report stating that thieves had broken into a DHSS employee’s car and stolen a USB drive containing unencrypted patient information.  Based on the breach report, the HIPAA police began an investigation.  Alaska had to pay $1.7 million in penalties and has to comply with numerous provisions to improve its security standards.  Where was Sarah Palin when they needed her?

The feds have stated that the breach reporting laws are an “important enforcement tool.”  What an understatement!  The reports serve as detailed confessions of HIPAA violations.  With those reports and hundreds of regulations, standards, and guidelines that only lawyers who are computer experts can understand, prosecution should be a piece of cake.

Yet, we can learn from the above cases.  First, encrypt all patient/customer data.  Be sure to encrypt emails that transmit patient information, including xrays.  Second, make sure that any person or agency that has access to your patient information has signed a business associate agreement as required by HIPAA.  Third, if you sustain a breach, immediately notify your attorney.  DO NOT try to file a breach report without legal advice – unless you have a few million dollars to throw away.  Fourth, be extremely careful in how you destroy patient records that are no longer needed.  If you ship them to a facility for destruction, be sure that you have checked out the facility and have a business associate agreement with it.   

If you study the federal government’s HIPAA website, you will see that there have been more breach notification reports than there are stars in the sky.  Accordingly, the HIPAA police have hired a private corporation to help with prosecutions.  It paid the company  millions of dollars in 2012.  It seems to me that leveling multi-million dollar fines against an overburdened health care industry and against states that are already drowning in debt may not be the best solution to the problem of privacy rights violations.  Perhaps someone in Washington needs to take a look at this.  Wait – never mind – that’s how we got into this mess in the first place.

( See, I do love patterns. Even my dishcloths have patterns.)

Hospital Sues Nurse

I’ve never thought it made much sense to sue a nurse.  Most folks know that nurses are not in the health care business to make the big bucks.  They do the “scut” work of cleaning up smelly messes, changing bloody bandages, and taking verbal abuse from other providers higher up on the food chain.  They spend more than 7 minutes with each of their patients trying to be sure they understand how the patient is feeling.  They are also skilled code breakers, being able to decipher the most mystifying handwriting on the planet.  Finally, they tend to show up in the courtroom parking lot driving beat up old cars.  Their hands, reddened from so much washing, usually clutch shredded tissues as they try to stop crying long enough to answer questions posed by lawyers and judges.  Most jury members feel compassion and appreciation for nurses. 

Apparently, most people agree with me.  Even in malpractice cases where a nurse’s mistake has cost a hospital millions of dollars, the hospital rarely sues the nurse to get its money back.  But an interesting case this year deviates from the norm.

In 2007, Nurse White was a traveling nurse for Cross Country Travcorps.  As part of her job, she worked for a major North Carolina hospital.  One of her patients was an infant who died.  The parents sued the hospital claiming that the death resulted from White’s carelessness.  The hospital agreed to mediate the case with the baby’s family and notified White’s employer of the mediation.  Travcorps decided not to participate in the negotiations.  The hospital settled the family’s claims for $2 million.  The hospital then sued Travcorps and Nurse White to recoup the $2 million.  It claimed that Travcorps failed to insure White’s competence.  Because Travcorp was White’s employer, the hospital looked to the company for reimbursement of its losses.  Travcorp then filed a claim against its employee, Nurse White.  The case is still in the court system, so it will be some time before we learn the outcome.  Yet, the Travcorps case has already taught us a valuable lesson.

Even though most health care institutions have malpractice insurance that covers their employees, I have always recommended that nurses and other licensed health care employees purchase their own malpractice insurance.  When an employer decides that its nurse has injured a patient, it will report the nurse to the state Nursing Board.  It will also typically fire the nurse leaving her with no way to pay a lawyer to help her defend any action that the Nursing Board decides to take against her.  If the nurse has her own malpractice insurance, that insurance typically provides licensure defense coverage.  It will help the nurse pay the costs of defending her license.  Without it, she may be out of a job and out of a profession.

But the Travcorps case teaches us that in some cases, nurses may be sued by their own employers in connection with a malpractice claim.  Clearly in such a situation, the nurse needs her own malpractice insurance to defend the claim.  Otherwise, the nurse could lose most of what she owns.

Nurses ask me whether it is more likely that they will be sued if they have their own insurance.  In response, I ask how an employer or patient would know that the nurse has her own insurance.  If the nurse doesn’t volunteer that information, the plaintiffs would not know about the insurance when they made their decision concerning the appropriate people to sue in a particular case.

Nurses also ask how much coverage they should purchase.  Typically, the nurse just needs minimal coverage for licensure defense.  But as the Travcorps case illustrates, protecting your license isn’t the only issue.  I truly hope Nurse White had her own malpractice insurance and that the policy limits exceed $2 million.  It’s rare for an employer to sue its nurses, pharmacists, dental hygienists or other employees.  But insurance is there for the rare case.  Fortunately, for health care employees, the policies are usually inexpensive.  If you are a licensed health care employee, please check it out.