Just In Case I Don't Make It . . .

 

Dear Folks,

 Living through a worldwide pandemic has an impact on your mental health.  In my case, I worry about unfinished business.

 Thinking about that, I realized that I had not alerted you to the 2017 amendment of the assumed name statute. I want to give you a heads up about that while I still can.

 Assume I’m opening a dental practice and my accountant wants me to incorporate for tax purposes.  The Dental Board requires me to use my personal name as the corporate name. So, my company would be, “Patrice Walker, DDS(or DMD),PLLC.” 

 Later, I may decide that a snazzier name would attract more patients.  Something like “Lizard Lick Family Dentistry” would be great.  If I chose that name, Lizard Lick Family Dentistry would be my assumed name.

 State law requires anyone doing business under an assumed name to record that name with the Register of Deeds of the county where the business is physically located.  The 2017 amendment requires any assumed name registered before December 1, 2017, to be re-registered.  Upon receipt of the new registration form, the Register of Deeds will record it and forward it to the Secretary of State (SOS).  The SOS will document it in the State’s new computerized listing of all assumed names.

Failure to re-file your assumed name before December 1, 2022, may cost you the ownership of your assumed name. If you have spent money promoting that name, you would want to avoid this problem.    

The law also applies to a dentist who buys Lizard Lick when I retire.  If the name was registered before 2017, you need to re-file it with the Register of Deeds.

 The application form does NOT have to be notarized. 

 Please be sure to attend to this unfinished business.  Neither of us is guaranteed a tomorrow – especially during a plague.

 Meanwhile, if you are thinking about the hereinafter and you feel that you might need a lawyer when you approach the pearly gates, know that I’ll help you out if I’m up there. If you get there before I do, could someone put in a good word for me? 

Thanks.

Patrice  

 

 

 

This May Save A Life

                                                                     JULY, 2020

                

Yesterday, I went to a doctor’s office to be tested for COVID 19. Instead of a test, I may have gotten a lethal dose of the corona virus. I write this law letter to help you avoid a similar fate. First, some important tips:

Before choosing a health care provider, look for the following:

1.  Can you fill out all check-in and payment documents    online?

2.  Do those forms ask about your exposure to COVID 19?    Do they ask whether other persons who live with you have been exposed to the virus?

3.  Does the clinic require you to wear a mask?

Once you arrive at the office, look for the following:

1.    Can you wait in the car until the doctor is ready to see you?

2.    Before you go into the office, does a gloved, masked staff member come to your car to take your temperature as well as that of other persons in your car?

3.    Does the staff member escort you into the office, opening the door for you?

4.    Are you provided a hand sanitizer to use upon entering the office?

5.    Are there social distancing markers inside the office?

I work for several dental clinics in North Carolina.  They all carry out these safety measures, among others.  The medical clinic I went to yesterday followed none of these  recommendations.  This is what happened to me:

Having filled in the online forms, I drove to the office.  I put on my mask and gloves before entering the closet-sized reception area.

 

A masked lady, who was not wearing gloves, greeted me and gave me another set of forms to fill out. As she was talking to me, another patient arrived. He stood a few inches behind me.  He was muscular and over six feet tall. He was blocking my exit. The receptionist said nothing.  I grabbed the paperwork and squeezed past him to get out of the office.  No social distancing at this place! 

I had already answered most of the questions online. Standing up and writing with gloves on is hard, so I sat on the bench outside the office.  When I finished, I returned to the office and gave the forms to the receptionist. 

While I stood outside, a couple arrived.  The man went in and began arguing with the receptionist. He was not wearing a mask.  The lady, wearing beach clothes, sat on the bench.

The receptionist, again with no gloves, opened the door and came outside with the man where the argument continued.  The receptionist repeatedly told the lady, “Your test came back positive! You can’t go to work!” 

I realized then that I was the only person entering or leaving that office who had worn gloves.  The infected patient, and probably many others like her, had also sat on the same bench where I had sat.  The office door handle and the bench were likely covered in corona virus germs.  No telling what I would find inside the office.

By this time, having waited 20 minutes, I left.

 

Be careful out there.  As for me, I’m making sure my affairs are in order.  I’ve already paid for my funeral and have a hazmat suit in case I ever have to go outside again.

Patrice Walker

MOTHER SUMMED IT UP PRETTY WELL

May 22, 2020

I loved Constitutional Law at UNC Law School.  I memorized the facts, rationale, and holding of every case assigned.  I even studied all the footnotes.  After all, the Constitution was the supreme law of the land.  I figured I’d better learn about it.  But about 300 cases later, I realized that listening to my mother could have saved me a lot of time. 

When I was around nine years old, during one of our many arguments, I told Mother that, “I have rights!  You can’t make me do that!”  Her response was, “Yes, you do have rights, but those rights end at the tip of your nose.” I came to learn that her statement was a great summary of Constitutional law.

As I watched menacing, armed men circle our state legislature demanding an end to the COVID-19 quarantine, I remembered my Mother’s words.  These men loudly proclaimed that they had a right of free speech and the right to bear arms. One yelled at a policeman, “That’s two of my constitutional rights you’re violating. You can’t do that!”

Obviously, the armed men had stopped after reading the first two amendments to the Constitution.  By not reading on, they missed the tenth amendment.  That amendment “trumps” the others.  It gives states the power to “regulate behavior” for the betterment of “the health, safety, morals, and general welfare” of their citizens. For well over 200 years, this law has authorized states to impose public health regulations including quarantine and isolation orders – even when those regulations impinge on individual rights guaranteed by the Constitution. 

One of the most famous US quarantine cases involved Mary Mallon.  Immigrating to the US from Ireland, she worked as a domestic for wealthy families.  She drew the attention of public health authorities when several of her employers’ family members became infected with typhoid fever.  It is estimated that she was responsible for 3000 typhoid infections in New York.  Many of her victims died.  As she was an asymptomatic carrier of the disease, her employers had not suspected that she was ill.

New York quarantined Mary to protect the public.  Mary sued for her freedom.  Eventually, the state agreed to turn her loose if she would agree to stop working as a cook.  Shortly after her release, she went back to cooking and infected no less than 25 more unsuspecting New Yorkers – two of whom died. The authorities placed Mary back in quarantine where she stayed for many years until her death.

North Carolina laws allow both State and local health authorities to quarantine and isolate persons who endanger the public health. Over the years, both state and federal courts have routinely upheld the states’ right and obligation to protect citizens from public health hazards.

So, Mom was right.  I do have certain rights – but my rights end when the exercise of those rights threatens the public health.  I can sneeze, but the government can require me to wear a face mask to help keep my germs from getting past the end of my nose. 

Thanks for reading. 

Patrice Walker

Hope

Dear Clients and Friends, One event years ago taught me that no matter how big a mess our lives are in, there is a powerful force that turns pain and turmoil into lovely blessings.  Please forgive me for sending one of my earlier law letters about that event.  I hope it gives you the hope that its memory often gives me.  We will get through this.

THE NIGHT THE LIGHTS WENT OUT IN CHAPEL HILL

May 1, 2007 

One of my dearest friends, Jeannie, was the music minister for a local church.  She had given me the score to a beautiful hymn from Australia.  After working on it for months, I could finally play it pretty well on my harp.  We decided that I would join with some professional musicians to play at her church’s Easter service. 

I was very nervous.  I didn’t want to embarrass myself in front of the other musicians.  I also knew that the church would be packed.  The Easter service is matched in attendance only by the Christmas service.  I wanted to do well for the congregants who would be there and I really didn’t want to let down my friend.  She would be singing that lovely hymn solo while I accompanied her on the harp.  I practiced hour after hour.

Shortly before Easter, Jeannie called to tell me that the priest had decided that the majority of the service would take place with the lights dim.  I wasn’t to worry, though, as I would be provided with a musician’s light.  I would have no trouble seeing. 

We met for our first practice.  The lights were dimmed and the tiny light worked well enough.  This was going to be a piece of cake.  A few days later, we all showed up for the service.  With our instruments tuned, we were ready to go.  Jeannie seated me between the piano player, who for some reason had a much larger light than the rest of us, and the cellist.  The church lights were low.  The people quietly entered the sanctuary, lit candles, and took their seats.  Everything was going to be perfect.

As the priest began speaking, the person in charge of the lights began to turn them lower and lower.  Soon, the lights weren’t just dim – they were out.  Only then did I realize that there were no windows in this sanctuary.  I couldn’t see my hand in front of my face, much less the harp.  My musician’s light, the size of one light on a Christmas tree, did nothing but cast shadows on the harp strings.   I was in really big trouble.

I leaned over to the piano player.

“Hey!” I whispered loudly. “I can’t see my strings!  You’re going to have to play that hymn for me.”

“No.”  She argued.  “The intro sounds much better on the harp.” 

There was no time for a musical debate.  The priest shot us a “hairy eyeball” for talking.

“OK”, I answered.  “I’ll play the intro and then you come in.  Deal?  Really, I can’t see the strings.”  She nodded in agreement as I tried to figure out how I could possibly play the intro.  Some of the most famous harpers in history were blind.  I was now going to join their ranks, if only for one tune.

My cue came and I launched into the beginning of the hymn.  Miraculously, I pulled off the introduction.  I sighed in relief.  Jeannie began to sing and I expected to hear the piano jump in.  But, no.  The piano player was looking up to the ceiling of the sanctuary, swaying back and forth.  She was apparently possessed by some spirit.  That’s why she didn’t see Jeannie’s eyes bugg out as she continued to sing solo. 

“Hey!” I whispered very loudly.  “Now would be a real good time to jump in.”

“Oh, yeah,” the pianist said as she snapped out of her reverie and began playing.

The remainder of the service went off rather well, although the violinist also gave up trying to play.  Her light was no better than mine.  Afterwards, the congregation began to file out.  An obviously emotional woman pushed through the crowd and as she got closer to me, I could see that she’d been crying.  Really, I thought, we weren’t that bad.

“I now know why the angels play the harp.  That was the most beautiful thing I’ve ever heard.” She reached to hold my hand.  “And the way you and the singer and the piano player arranged that last hymn – your timing was perfect.  It was just lovely.  Thank you so much.”

“Yes, ma’am.  I’m glad you noticed that.  We worked for hours just to get it right.  Thank you so much.”  I answered.

There was no way I was going to ruin that lady’s worship experience.  For my part, I was feeling fairly emotional that night too.  Some One had bailed me out of a potential disaster.  As so often happens in life, there is a power out there that can turn even our biggest problems into something beautiful and meaningful.  That power is with us now. 

Just listen for it.

COVID 19 WARNING - TO DENTISTS

I have just learned that consultants are advising dentists to encourage patients to keep scheduled appointments for non-emergency or elective procedures. THIS IS TERRIBLE ADVICE.  DO NOT DO THIS.

In 1920, the North Carolina Supreme Court ruled, “It is a well-settled proposition of law that a person is liable if he negligently exposes another to a contagious or infectious disease.”  In 2006, California courts, citing the North Carolina case and many others, agreed that negligently exposing another to a contagious disease is actionable.  The Plaintiff in the California case won $12.5 million in damages.  Insurance did not cover the loss.

Although the recent CDC guidance urges dentists to take precautions with patients who have signs of respiratory illness, that guidance did NOT state that dentists should see patients for non-emergency or elective dental procedures.

The corona virus is highly contagious.  A person can be contagious without showing any symptoms of respiratory illness.  The virus is deadly.  Public health experts from Johns Hopkins tell us that that there are probably 500,000 infected persons in the United States.  It would be grossly negligent for any health care provider to encourage a patient to come to a public office under these conditions for a routine visit.  Please reschedule these patient appointments as soon as possible.

You, your employees, your patients and families risk infection if you do not reschedule these patients.  Moreover, you risk significant liability and damage to your professional career if the government traces cluster of infections to your office. 

Ain't Nothing Funny About This!!!

In the fall of 1969, Dad drove me to college in Richmond, Virginia, to begin my freshman year.  After moving me into the dorm, he sat down for a father-daughter talk.  Although I was excited to be in college, I was nervous as I didn’t know any one at the school.

          As always, Dad sensed how I felt.  He said, “Now Trice, there’s absolutely nothin’ for you to be worried about here.  If anything comes up that you can’t handle, you just pick up the phone and I’ll be here within two shakes of a rattlesnake’s tail.”

“But, Dad”, I asked, “how will I know whether I can handle the problem on my own?”

He answered, “Well, you think about the problem a bit and if you can’t find anything funny about it, you call me.”

The past few weeks, I’ve thought about that afternoon.  I’m hiding out at my home office from a highly contagious virus that’s killing thousands of people worldwide.  If that weren’t bad enough, the stock market has tanked.  I wonder if my meager life savings will be in the bank next week.  Will there even be a bank next week? I have thought and thought but I can’t find anything funny about this. 

 At a time like this, I believe Dad would have told me to see if I could find anything else that was funny.  After all, any laugh would help.  Luckily a 2019 State Bar Ethics opinion flashed across my news feed. Thinking that you folks could also use a laugh, I’m passing it on.

It seems that a district attorney and a criminal defense lawyer decided to have an affair.  You might think that they would have a few worries – jealous spouses, rashes, or pregnancy.  But these two were most worried about the State Bar finding out.  Now I don’t think the State Bar has a sex investigations unit, but just to be careful, these lawyers asked the Bar for an opinion. 

First, the Bar thoroughly researched the issue, citing cases from around the country.  (I didn’t know that this type of behavior was a nationwide epidemic, but apparently it is a big problem.)  Then, after due consideration, the Bar ruled that in order to avoid the appearance of a conflict of interest, the lawyers should FIRST obtain their clients’ informed, written consent to the affair.  

I’m not sure what information you have to give your client to be sure that the consent is informed.  I leave that to your imagination.  As far as getting consent, I guess the district attorney will have to request a special election so he can get written consent from his clients – the local voters.  Imagine the campaign promises!!!  It would surely get out the vote.   Is a majority vote sufficient?  Or does the DA need 100% approval?

But my chief worry is that when these two lovebirds told the Bar that their affair had gone on for “one to three months,” they had unknowingly confessed to the crime of lewd and lascivious cohabitation.  (N.C. Gen. Stat. 14-184). 

Now you might think that the “carrying on” could not have been too “lewd and lascivious” as the lawyers couldn’t remember how long it went on.  Of course, that depends on the legal meaning of “lewd and lascivious cohabitation.”  As a law student, I was clueless – but couldn’t wait to find out.  To my surprise, it doesn’t matter which sex acts took place. The only issue is how long the sex continued.  In the landmark Robinson case, the Court noted that the defendants had been shacked up in a trailer park for   three or four weeks.  That was entirely too long.

Years ago, a local high school asked me to teach a law class.  As I was explaining the dangers of lewd and lascivious conduct, one young fellow asked, “Does that mean that on day 14, I need to break up with my girlfriend and hang out with someone else for a day or so and then I can go back?”  Before I could answer, an angry young lady in the back of the class yelled, “No!!!! You MAY NOT!”   The lecture kind of disintegrated from there and, to my surprise, I was never asked to return.

Dad was one of the wisest people I ever knew.  He’s right.  You can always find something funny.  And when you can laugh, you can handle anything.  We’ll get through this.  We’ve seen worse.

Patrice Walker      

North Carolina's Response to the Corona Virus

The Corona Virus and North Carolina Clinics

          Our state has issued a corona virus “guidance” to all “healthcare providers.”  The term “healthcare providers” covers physicians as well and others who do not treat patients for the flu such as dentists, physical therapists, optometrists, and pharmacists,  The following tips will help non-physician providers comply with the guidance and avoid legal problems that may arise.

All non-physician providers should:

1.      Take infection control measures appropriate to the clinic setting,

2.    Consider postponing non-emergency care when the patient appears to have a respiratory illness,

3.      Comply with HIPAA, and

4.    Enact corona virus policies that do not discriminate on the basis of national origin. 

Notices

Our state asks all “health care providers” to post signs about the corona virus. North Carolina has not given us a sign template.  The Texas sign tells patients to let “staff” know whether they have been “ANYWHERE IN CHINA” in the 14 days prior to the appearance of symptoms.  North Carolina asks patients to tell providers whether they have traveled to “areas with ongoing corona virus transmission in the last 14 days”.  Unfortunately, this assumes that patients know which countries are of concern. 

Our signs should simply ask patients to report flu like symptoms upon checking in.  The signs should list CDC flu symptoms such as fever, cough, sore throat, runny nose, body aches, headaches and fatigue.

Patient Evaluation and Additional Protocols

Our state asks “healthcare providers” to evaluate patients for any “respiratory infections” including the flu.  Although non-physician providers are not licensed or equipped to diagnose the flu or the corona virus, anyone can determine whether the patient has flu-like symptoms.

Other North Carolina corona virus protocols address managing the patient, the clinic environment, diagnostic testing, and visitor access as well as using personal protective equipment.  Some of these protocols clearly do not apply to non-physician providers.  Still, all providers should adopt those practices that do apply to their clinic setting.

What to Do When Patients Report Flu-like Symptoms

If the patient reports flu-like symptoms, non-physician providers should consider rescheduling the patient.  If rescheduling would endanger the patient, the provider should ask questions about recent international travel or other exposure to the corona virus, such as being near people who are known to be infected.  To comply with HIPAA, this discussion should take place outside of the view and hearing of other patients.  If the patient reports having been in “areas with ongoing corona virus transmission” within the past 14 days, the provider should call the NC Communicable Disease hot-line at 1- 919-733-3419 to consult with experts on the virus.

Recommended Office Policies

The clinic should enact an office policy that references the parts of the N.C. guidelines that apply to the clinic.  That policy should clearly state that it applies to ALL patients who present with symptoms of the flu.  Although the virus may have originated in China, the evidence clearly indicates that people of many different countries have been infected by the virus.  A provider who only asks questions of people from China is ignoring the data and contributing to the spread of the virus.  He or she also risks being charged with illegal discrimination. Finally, the policy should require documentation of the discussions with the patient that relate to the above.

This flu will eventually go away.  Meanwhile, providers must comply with DHHS guidelines as well as other relevant federal and state laws.

Thanks for reading.   Patrice Walker

[1]https://epi.dph.ncdhhs.gov/cd/coronavirus/_Interim%20Guidance%20for%20Healthcare%20Settings.pdf?ver=1.4.  DHHS updates those guidelines frequently, so please check them often for new information.

Thou Shalt Chart!!!

Another  Sad Charting Failure

          How important is charting?  According to the Hebrew Bible, even the Lord God Himself charted important information.  He didn’t simply tell Moses the laws that would govern His people.  He wrote them down on “tables of stone.” In the health care business, we all know that “If it wasn’t charted, it wasn’t done.”  Ignoring that rule cost one California dentist his license.

Dr. L was a general dentist who limited his practice to dental implants and oral surgery.  His patient presented complaining of pain around tooth #14.  She had no complaints of lower-tooth pain.  Yet, Dr. L convinced her to let him pull her lower left and right wisdom teeth in addition to tooth #14.  He removed all three teeth the day she first came to the office.

Dr. L anesthetized the patient at 12:20 pm but did not begin the surgery until 2 pm.  He performed a coronectomy on tooth #32 and pulled teeth #14 and #17.  He placed bone-grafting material at each site.  After the surgery, the patient had increasing pain.  That pain has continued for more than 4 years.

The Board found the following errors among others:

1.      After the surgery, Dr. L did not conduct a follow-up call or perform a postoperative examination.

2.     Dr. L did not record or monitor the patient’s continuous oxygen-saturation levels or respiratory rate.

3.     He waited too long after administering anesthesia to begin the surgery and kept the patient anesthetized too long.

4.     He failed to record the patient’s preoperative medical history.

5.     He failed to document his preoperative exam findings.

6.     He failed to obtain consent to perform the bone grafts.

7.     He failed to document the use of a barrier to close the bone-graft sites.

8.     He failed to record the type of biomaterial used for the bone graft.

9.     He failed to record the type of fluids infused during the surgery.

10.  He failed to obtain and interpret a 3-D scan before performing the coronectomy.

11.       He misdiagnosed root resorption.

12.       He had no clinical indication for performing a graft at tooth #17.

Dr. L argued that while he may have failed to document some of the above actions, he did perform them.  The Court ruled, “The lack of documentation corroborating Dr. L’s testimony is itself substantial evidence that he did not perform the acts he claims.”

The Court upheld the revocation of Dr. L’s license.

Thanks for reading.  Remember – write it down!

Patrice Walker

How to Legally Handle Bad On-line Reviews

He that filches from me my good name makes me poor indeed.

           The patient was difficult from the start.  She refused necessary treatment and then got angry when her decision resulted in the need for expensive dental work.  You wrote off her bill when she would not pay it and you hoped that would be the end of it. But, alas, it was not to be.  The patient has now filed a nasty review of your practice on social media.  Do you have the right to respond to the untrue claims that this patient has published? 

You can defend yourself, provided you proceed with caution.

        Last year, the federal government fined a dental practice $10,000 because of its answer to a bad Yelp review.  Replying to the post, the dentist revealed the patient’s full name and details of her treatment.   Those disclosures violated the patient’s right to privacy.  In addition, the dentist did not have a written office policy addressing the proper way to respond to on-line criticism.  HIPAA requires all covered practices to have such a policy. 

In the final settlement documents, the government warned that it had the right to impose a much higher penalty than $10,000.  It stated that the doctor’s cooperation with federal investigators was a mitigating factor in determining the size of the fine.

          After on-line reviews became popular, many providers filed defamation lawsuits over derogatory on-line posts. Not having the funds to defend such lawsuits, frightened patients withdrew their reviews.  Congress and state lawmakers responded by passing laws to protect patients’ rights to free speech.  Despite these laws, one dentist sued the same patient three times in connection with a bad review.  Each time, the court sanctioned the dentist and awarded the patient thousands of dollars in attorney fees and court costs.

          What lessons do these cases teach us?

1.        Be sure you have a written policy addressing the proper way to respond to a negative social media review.  The policy can be as simple as: “No response to an on-line review will be published without our attorney’s review and authorization.”

2.          Do not identify the patient by name, or otherwise, in your response. 

3.        Do not discuss the patient’s dental condition in your response. 

4.       Before hiring a lawyer to sue the patient, consider whether the patient has made a false statement of fact in the bad review.  Mere opinions may not be actionable.  For example, a patient’s false claim that you hit the patient, misdiagnosed the patient, or committed dental malpractice can support a defamation lawsuit.  A claim that you were “not very nice” probably won’t impress a judge or jury.

5.         Consider whether your patient has the means to pay any damages that a court might award.  If not, the only one smiling at the end of the case may be your lawyer.  

6.              North Carolina law prohibits lawsuits filed for “an improper purpose.”  I know of one North Carolina case where a judge awarded several thousand dollars against a plaintiff who filed a suit in order to get even with a relative who had hurt the plaintiff’s feelings.  To avoid a similar result, you should have evidence that the defamatory review has actually damaged your practice.

7.           Finally, be sure your practice attorney reviews your response to a bad review before you press “Send.”

Patients do have the right to post honest reviews.  But providers have the right to protect the good will of their businesses.  

Thanks for reading.

Patrice Walker

Take Care of Yourself - Legally

The day at the pharmacy was long and hectic.  Customer lines were endless and the phones rang constantly.  In the middle of all this confusion, Bill, the supervising pharmacist, checked the name, route of administration, dose, and strength of every prescription before it went to the consumer.  During his shift, he managed two five-minute bathroom breaks and ate a snack behind the counter.  Unfortunately, he also missed a technician’s error and gave one patient the wrong medication.

When the patient discovered the mistake, he contacted the Pharmacy Board and filed a complaint against Bill and the pharmacy.  Upon learning of the complaint, the pharmacy told Bill not to worry about it.  The pharmacy’s lawyer would represent them both at no cost to Bill. Relieved that he wouldn’t have to pay a hefty legal fee, Bill set up an appointment with his new attorney.

At the beginning of their meeting, the lawyer said that Bill would have to sign a conflict of interest waiver.  Although the attorney tried to explain the waiver, the legal jargon was confusing.  Still worried about the cost of hiring his own lawyer, Bill signed the form.

The lawyer asked how the medication error occurred.   The pharmacist began describing the working conditions at the pharmacy.  It was significantly understaffed.  This resulted in an impossible workload for the technicians and the pharmacist.  Before he could further explain, the lawyer interrupted him saying that he couldn’t discuss those kinds of factors because it would hurt the pharmacy.  Suddenly Bill understood the form he had signed.  He concluded the interview and hired his own attorney.

Representing both Bill and the pharmacy put the attorney in a classic conflict of interest.  If he offered evidence of poor working conditions, he would help the pharmacist.  But that same evidence would reflect badly on the pharmacy.  By helping one client, he would injure the other.

The pharmacist wisely chose to hire someone else.  His new lawyer did offer the evidence of poor working conditions.  For his part, the pharmacy’s attorney argued that the pharmacy provided an exemplary work setting.  Fortunately for Bill, the Board agreed with him about the working conditions.  Bill kept his license.

While Bill fared much better with his own lawyer, he was out several thousand dollars in attorney fees.  Unfortunately, he did not have his own liability insurance.  That insurance would have paid most of his defense costs.  When the pharmacy hired Bill, it assured him that he was covered under their policy.  Relying on that assurance, Bill had not purchased his own coverage.

The pharmacist learned many important lessons from the experience.  First, a health care provider needs individual insurance that covers licensure disputes.

Second, it is dangerous to work in an understaffed facility.  Before the drug error, Bill felt good about doing all he could to help the pharmacy succeed despite the staffing problem.  He happily skipped breaks, worked overtime, and tried to be as efficient as possible. He cared about his patients, employer, and coworkers.  He thought he could safely meet his employer’s expectations. 

He now understands that lack of adequate staffing will cause even the best pharmacist to make mistakes.  He maintains adequate insurance coverage.  Before taking on a new job, he checks out staffing and other working conditions.  He also talks with former facility employees to determine the level of support provided by the company.

These are lessons that can benefit all licensed health care employees.  Please consider obtaining your own professional insurance coverage.  Remember that you must take care of yourself in order to take care of those who need you.

Begin at the Beginning

     The best part of my 16^th birthday was getting my driver’s license.  I could hardly wait to jump in Dad’s lime green ’57 Ford Fairlane 500 and hit the road.  Freedom, if not style, was within my grasp at last.  To my surprise and disappointment, however, Dad still wouldn’t let me drive.  He said that it wasn’t enough to know how to drive, I needed to understand how cars worked.  He would only let me drive after I had disassembled the engine, cleaned it, and put it back together.  Knowing that it was useless to argue, I asked when I could get started.

     Early the following Saturday morning, Dad spread a big sheet on the floor of the carport, brought out his tools and showed me how to take the engine apart.  I was to place the parts on the sheet in the order that I removed them.  That way I’d know the order in which to reinstall them after cleaning them. 

     I rolled up my sleeves, grabbed a wrench and dug in.  I could quickly see why this machine needed a good cleaning.  Everything was covered in grease and gunk.  I wondered how it ever got out of the driveway. 

     By late Sunday afternoon, I was ready to clean the engine.  I grabbed a big scrub bucket, several rags, Brillo™ pads, a can of Comet™ with bleach, and a scrub brush with metal bristles.  I filled the bucket with Tide™ detergent and lots of hot water.  I was determined to have every part of that engine sparkling clean when I got behind the wheel.  I had just finished dragging the hose over to the carport when Dad returned from a round of golf.  He jumped out of his car, began waving his hands in the air and ran over to me yelling, “Stop!! Stop!!”  Having no idea what could have set him off like this, I froze mid-stride.

     Turns out that cleaning a car engine is not like scrubbing the outdoor grill after a family barbeque.  Had Dad not arrived when he did, I would have killed the engine for good.  Engines need grease and gunk.

     Things moved along much faster after Dad decided to take over the project.  He quickly “cleaned” the engine and began putting it back together.  My job was to watch from the sidelines.  When I noticed that he wasn’t putting back all the nuts and bolts, I timidly asked why he was leaving them out.  He explained that all manufacturers install extra screws in case some get lost.  Although he told me not to worry about the leftovers, I gathered them up in a bucket just in case. 

     By Sunday afternoon, Dad had reassembled the car.  After school, he gave me permission to take it out to the grocery store.  Joyous, I jumped in the driver’s seat and took off.  I almost made it to the grocery store when the car quit running.  I was able to get it off the road, but I couldn’t get it to start.  I lamented having left my bucket of bolts back at the house.  I was sure that a missing screw was causing this disaster. 

     Luckily, I wasn’t far from a gas station.  I found an attendant who agreed to walk back to the car with me to see if he could get it started so that we wouldn’t have to tow it in for repairs.  He took the keys and, like me, he was unable to start the car.  However, unlike me, he immediately knew the problem.

     “You know, lady” he said, “these things need gas to run.  You’re on empty.”  With this, my humiliation was complete.  I walked in shame with him back to the station where he loaned me a can to take some gas back to the car.  I was grateful that he didn’t ask if I knew how to get the gas into the tank.

     I didn’t tell my parents about the gas issue.  My father’s estimation of my intelligence had already dropped by at least 25 IQ points after the engine cleaning episode.  If he knew how dense I really was, he would probably never let me out of the house again.

     I did learn quite a bit from the entire experience.  My understanding of car engines became outdated as engines changed over the years.  But I discovered an important lesson about being a teacher.  You must never assume that your student knows the “basics.”  Always begin at the very beginning.

The Very First Contract

     Mornings are not my favorite part of the day.  They were especially difficult when, in addition to trying to get to work or court, I had to herd three grumpy teenagers into the car so that I could get them to school on time.  One of my sons had developed a slightly rebellious streak that seemed to be getting worse daily.  Perhaps it had something to do with his deepening voice and sprouting facial hair. 

    On the way to school one typically miserable morning, he said, “You know, Mom, I’m bigger than you, stronger than you, and faster than you.  I’m sitting here wondering why I have to do what you say.”  I reached into my purse and pulled out my checkbook.  “The reason, son, is that the last time I checked, you were unemployed.”  He grinned and replied, “You’ve got a point there, Mom.”  He understood that in return for me providing care and support, he had an obligation to comply with house rules.

     I thought about that morning recently when reading about disgruntled voters who are threatening to kill our President.  Some claim that his election is the end of our democracy.  To save us from the “madness”, they have decided to resort to violence.  Like my teenaged son, they’ve forgotten about their obligation to comply with the very first contract.

     William Blackstone was an eighteenth century legal scholar who is still respected for his knowledge and wisdom.  He writes that the “original contract of society” is the foundation of all law.  This unwritten contract requires the community to “guard the rights of each individual."  In return for this protection, "each individual should submit to the laws of the community.”[1]

     From the beginning of time, societies have devised codes of conduct.  Our laws are the culmination of thousands of years’ experience in determining the best way to govern ourselves.  Our democracy is not perfect but our laws provide ways, such as voting and nonviolent protests, to address those problems.  Therein lies our government’s genius and staying power.  Therein lies its right to our respect and obedience. 

     For help with my parenting problems all those years ago, I consulted a neurologist about the change in my children.  Either I had suddenly become a bad mother or all three of them were developing personality issues.  I had gone from worrying about how I was going to pay for their graduate school tuition to praying that the mischief would never amount to more than a few misdemeanors.

     I was relieved but surprised when the doctor told me that it wasn’t my fault.  The kids were in fact flipping out.  He said that all teenagers’ brains are structurally unable to make reasonable choices.  The best I could do was to help them “keep it between the ditches” until their brains finished developing.  He assured me that once that happened, I would see the amazing people they were destined to become. 

     Wearily, I asked how long this development would take. He responded that by the time they reached the age of 23, all should be well.  I didn’t know how I would get through the next eight years, but at least there was a light at the end of the troubles.

     I’m happy to say that the doctor was right.  We experienced challenging times during those eight years and we all learned important lessons from them.  But now, I am once again a very proud mom of all three of my children.  They have each grown up to be more than I ever hoped for.

     It may be eight years before the current political turmoil settles down.  Like my teenagers, our government may be experiencing growing pains.  But history teaches that our government can survive great challenges.  Our nation has endured and learned from a bloody civil war, two World Wars, deadly epidemics, the turbulent sixties, and numerous economic depressions.  It can surely handle the upcoming challenges. We just have to “keep it between the ditches” and honor our fundamental contract.  

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[1] Blackstone’s Commentaries on the Law, page 29 (1941).

The "Professional Plaintiff"

     As I’ve been a lawyer for over forty years, it was inevitable that I’d eventually run into a “professional plaintiff.”  For those of you who haven’t had the pleasure, let me introduce you to one such man - Cory Groshek who operated primarily out of Wisconsin.  Mr. Groshek made his living applying for jobs.  It wasn’t that he wanted the jobs.  He was trying to catch employers who ran a credit check on him without complying with the federal laws on doing so.  Once an employer fell into his trap, he would threaten the employer with a class action lawsuit.  In one year, he collected $230,000.  Not bad pay for filling out 562 job applications.  A couple more years and he’d be a millionaire.

     Everything was going really well for Groshek until he tried to bully Time Warner Cable.  He applied for a job and signed the Time Warner form authorizing the company to check his credit.  Once he had proof that they had run the credit check, he began with the threats.  His initial demand was allegedly for $5 million.  When Time Warner refused to pay, he filed suit.  You may wonder what Time Warner did that violated federal law.  After all, the company did get written consent to check Groshek’s credit as required by the Fair Credit Reporting Act.  Groshek argued that their consent form contained irrelevant information.

     In May of 2016, the U.S. Supreme Court ruled that because Groshek had not been damaged by the credit check, he had no grounds to file suit.  Groshek had no damages because after running the credit check, Time Warner offered him a job.  Groshek probably wasn’t surprised by the job offer.  As he was making money hand over fist at that time, I suspect that he had a great credit score.

     Even lovely Chapel Hill, North Carolina, has seen  professional plaintiffs at work.  One lady in question was born with cerebral palsy and is wheelchair bound.  As of 2011, she had filed 290 lawsuits against various businesses alleging that they were not in compliance with the Americans with Disabilities Act.  This plaintiff lives in Florida but visited a Chapel Hill shopping center on three occasions on her way to see her attorney in Durham.  She claimed, among other things, that the disabled parking spaces “do not have clear and level access aisles”; that signs were “not mounted at sufficient heights”; and that curb ramps contained “excessive slopes.”  While she argued that these “excessive barriers” “endangered her safety,” she did not allege that she was denied access to the stores or that she suffered any physical injuries.  Indeed, she wanted to “visit Defendant’s property once again” because it “has an attractive selection of goods and services.”  The federal court tossed the lawsuit.  It ruled that the plaintiff had not suffered any injury and therefore had no case.      

     Although the plaintiffs lost the above two cases, there are thousands of claims that professional plaintiffs have successfully pursued.  For that reason, it was discouraging to see that in July of 2016, the federal government authorized patients to sue health care providers who do not provide them with federally mandated interpreter services.  During the months that followed, I began to receive telephone calls from clients who had been challenged by patients demanding interpreters.  As I had not received any such calls in the first 40 years of my practice, I cannot help but think that my clients were dealing with professional plaintiffs who were looking to make a buck using the new regulations.  Luckily, those calls have died down and as far as I know no one has been sued. 

     Professional plaintiffs tie up the court system and waste jurors’ time all at the expense of the taxpayer.  They also run up exorbitant attorney fees and court costs for hapless defendants.  When those defendants are health care providers, those expenses will be passed on to all of us in the form of higher health care costs.  Hopefully judges will begin to close the courts to these plaintiffs and order them to pay their defendants’ expenses and sanctions for filing frivolous cases.  Perhaps then, the courts can get back to the business of helping citizens who actually need access to the judicial system.