Jumping A Snake

Some people talk about having a “near miss.”  Others may say they “dodged a bullet.”  Whenever my Dad escapes grave danger he says, “Well, I certainly jumped a snake on that one!”  A few months ago, some North Carolina dentists “jumped a snake” in connection with a lawsuit alleging violations of the federal Anti-Kickback Act and the False Claims Act.

Current and former employees of a major dental supply company filed suit.  They claimed that their employer gave dentists illegal kickbacks for buying its supplies, including dental implants.  These “incentives” included cash, all-expense paid trips to international symposiums, and free dental equipment.  It also paid them to speak at numerous workshops in exchange for buying the supplies.

 The dentists who accepted these illegal incentives used the supplies in treating patients.  They then billed dental insurance carriers as well as Medicare and Medicaid for that treatment.  A health care provider who files a false or fraudulent claim for payment violates the False Claims Act.  A claim is fraudulent if the provider violates the Anti-Kickback laws in connection with treating the patient.  The Court viewed the incentives offered by the dental supply company as illegal kickbacks.

The defendant told the Court that it had not filed any claims with the government or insurance companies.  It argued that the dentists were the ones who accepted the kickbacks and filed the fraudulent claims.  Accordingly, it reasoned, the dentists were the proper defendants.

The Court rejected this argument.  It held that the dental supply company would be liable if it induced the dentists to accept the illegal kickbacks.  It ordered the case against the company to go forward to trial.

The Court noted that the complaint failed to identify the dentists who accepted these kickbacks.  It did list the states where these dentists practiced.  North Carolina is one of the states listed.  Fortunately the Plaintiffs did not file claims against the dentists.  The dentists have jumped a snake – for now.  Still, it is important to take note of the case and the types of “incentives” that the courts view as illegal kickbacks.  Very few folks can jump the same snake twice.  

The Thanksgiving Day Massacre

This time of year experts are full of advice to help Americans cope with holiday stress.  I think our own efforts to meet unreasonable expectations cause this annual misery.  There are parties we must host and attend. Holiday gifts are real budget busters.  Feasting destroys waistlines.  Excessive drinking damages relationships as it attacks the liver.  But the worst part is having to hang out with people we don’t like.  Most of the year you can avoid that smelly relative who doesn’t believe in baths, but you have to sit beside him at Thanksgiving dinner.

A group of doctors from a world-famous clinic recommends:

 “Try to accept family members and friends as they are, even if they don't live up to all of your expectations.”  Like all advice, this bit should be taken with a grain of salt and tempered with a massive dose of common sense. 

In Florida on Thanksgiving Day, 2009, Paul Merhige showed up at his family Thanksgiving dinner.  Paul’s uncle, the host of the party, had earlier told Paul’s parents that Paul was not invited.  Paul had a history of violence caused by mental illness. Shortly after his arrival at the dinner, Paul pulled out a gun and opened fire on his relatives.  He killed both of his sisters, his little niece, and his aunt.  He also shot his brother-in-law.  Lawyers for the survivors and the estates of the dead relatives sued Paul’s parents, claiming that Paul’s parents had told him about the party and invited him to come. Arguably this invitation subjected the family to “foreseeable danger.”

Over the years, Paul was involuntarily committed to mental health facilities on three separate instances because of his violent outbursts.  He repeatedly threatened to kill family members.  Refusing to let Paul live with them, his parents gave him a condominium, money, and a housekeeper.  Before the murders, the housekeeper had warned the parents that Paul wasn’t taking his psychotropic medications.  The Court found that “the depraved nature of Paul’s mind is unquestioned.”

The law has been reluctant to hold people liable for the criminal actions of others.  Exceptions to this rule include cases imposing liability against landlords who fail to take reasonable steps to protect tenants.  Businesses, employers, jailers, hospitals and schools may be liable when their negligence results in harm to customers, employees, prisoners, patients, and students.  In those cases, the courts have found a “special relationship” between the defendants and the injured parties.  This relationship imposes a duty of reasonable care.

In February, a Florida court ruled that there was no special relationship between Paul’s parents and their relatives.  They had no duty to refrain from action that would predictably result in the deaths of their daughters and their helpless six year old granddaughter.  It further found that imposing such a duty would violate public policy.  It said that “[f]amily members with psychological or behavioral problems are a common occurrence” and that “families should be encouraged to include a troubled family member in the family circle.”  It did not want to “discourage families from providing a haven to troubled relatives.” (Note that Paul has graduated from “depraved” to “troubled.”  Also note that while the Court envisions family gatherings as a “haven,” the Mehrige party was more like a slaughterhouse.)

The case evokes many reactions.  Gun control advocates argue that it is yet another example of the carnage caused by our nation’s refusal to enact gun control laws.  Their opposition claims that the case points to a need for everyone to have guns.  Had the host of the party been packing, Paul may not have attacked.  If he had attacked, his uncle could have stopped him with a bullet or two.  Imagine the happy family sitting around the dinner table with guns strapped to their hips.  It certainly gives a new meaning to the term “food fight.”  You’d better believe I’ll pass the potatoes – pronto.

An average citizen like me is in no position to resolve these debates in time for this year’s mayhem.  As I studied the case, I wondered what I would have done had I been at that Thanksgiving dinner when Paul showed up.  I’ve decided that once he appeared on the front porch, it was too late to do anything.

 Whoever invited Paul to the gathering put everyone in a no-win situation.  Calling the police, trying to leave, or ordering Paul to leave may have triggered an attack.  When crazy Paul walked in, folks did the only thing that seemed reasonable.  They tried to avoid making him angry and prayed that they’d get out alive.  Of course, it’s pretty impossible to avoid making “depraved” people angry.  They typically show up enraged – or “troubled.”

I don’t know about you, but the court’s ruling has certainly added to my holiday stress.  From now on, I’ll have to devise an escape plan in the event of the arrival of an uninvited homicidal maniac.  Perhaps it’s just easier to stay home.  While this doesn’t encourage the growth of strong family bonds, it may reduce the stress, murders, and suicides that accompany the holidays.  Perhaps we should just Skype or send a holiday email.  It would certainly be less stressful.  I’ll sign up for Skype tomorrow.

By the way, Happy Thanksgiving.

The Ouija Board Murder Trial

In 1993, London police found the bodies of newlyweds Harry and Nicola Fuller in their home in East Sussex, England.  Although Mr. Fuller, a 45 year old car dealer, was known to hoard “wads” of cash, police found little money at the home. The killer had shot Mr. Fuller once in the back.  Four separate shots took out his 27 year old wife.  The last bullet shattered her jaw and head as she called 999 for help.  The dispatcher thought she was hearing children playing and did not route the call to police.

Stephen Young stood trial for the double homicide.  The night before rendering their verdict, and allegedly after a drunken party at the hotel where they were sequestered, four members of the jury consulted a Ouija Board to ask Mr. Fuller’s spirit to identify his murderer.  Having lost the Board’s planchete, the four used an upturned wineglass to spell out the answer from Mr. Fuller.  The spirit – or spirits – identified Stephen Young as the killer.

Shortly after the trial, the court learned about the Ouija Board verdict and ordered a new trial for Mr. Young.  The second jury – without the benefit of a Ouija Board – convicted Mr. Young.  So, I ask you, based on this evidence, is the Ouija Board reliable?

If you require further evidence of its reliability, consider the manner in which the Ouija Board became patented.  Elijah Jefferson Bond applied to patent the Board in 1890.  The patent official initially refused to issue a patent because he did not believe that the Board actually communicated with the spirit world.  Bond suggested that they put the Board to a test.  The official agreed to issue the patent if the Board could answer a question – how to spell the official’s last name.  Bond put the question to the Board and amazingly – assuming the officer’s last name wasn’t Jones or Smith- the Board correctly spelled the bureaucrat’s surname.  The patent issued.  As you contemplate the wonder of this last tidbit, please disregard published claims that Bond, referred to by skeptics as a “patent attorney,” probably knew the officer’s last name from prior dealings with the office.  The ABA created the Patent Law section in 1893, three years AFTER the Ouija Board’s patent.  Accordingly, Bond was not a “patent attorney.”  It is true, however, that Bond was a lawyer who had previously patented many devices.  

 If you are still not convinced of the reliability of the Ouija Board, consider the recent research of well-respected cognitive psychologists who claim to have discovered the “inner zombie.”  Assume you are driving down one of two familiar routes that you take when you visit a friend.  Along the way, you think about the good times you’ve enjoyed with this person in the past.  When you arrive at her house, you can’t remember which route you took.  Scientists say that the “inner zombie” part of your brain did the driving.

Dr. Helene L. Gauchou, an imminent psychologist from the University of British Columbia, uses the Ouija Board to study this inner zombie.  She builds upon research conducted by Harvard psychologist Dr. Daniel Wegner.  She found that people who used a Ouija Board to answer obscure yes/no questions “got it right” 65% of the time.  Statistically, one would expect a 50% accuracy rate.  Scientifically, the 15% increase is significant.

I have no idea whether spirits or our own hands cause the movements that enable the Ouija Board to give us answers.  Perhaps, as ancient alien theorists have suggested, aliens from a far off galaxy are using the Ouija Board as a communication portal. Even without extra-terrestrial help, however, I can tell you one thing for sure. Although a jury’s use of a Quija Board may bring in the right verdict, it will certainly result in a mistrial.

HAPPY HALLOWEEN!