Cattaraugus County, New York, will not soon forget the Easter of 1992. That April, two tourists decided to explore the 17 counties of the Western District of New York. The decision was not as random as it may first appear. One of the tourists had recently been convicted of felony tax evasion. His probation limited his travel to that area of the state.
The morning of April 23, the men stopped for breakfast at a café in the “Enchanted Mountains” of Cattaraugus County. They noticed a little girl at the diner all dressed up “in her Easter finery.” They thought it would be fun to put on the “Easter Bunny” mask they happened to be carrying in their van to surprise the girl. One of them then donned the two foot tall rabbit head, peered into the café window, and waved at the child. Locals also spotted him looking into bank windows and windows of the police department while disguised as the Easter Bunny. Having had a look around, the tourists headed out for Chautauqua County, New York.
Back in the Enchanted Mountains, alarmed villagers alerted local law enforcement to the Easter Bunny and his “surveillance” of the bank and police department. Worried about potential bank robbers, Police Lieutenant Travis issued an all points bulletin on the tourists. He warned that they should be considered “armed and dangerous.” Later, Travis heard from the FBI that one of the men had been convicted of “some type of perjury” under Title 26 of the US Code. Having never heard of Title 26, Travis went to the library where he learned that it was the federal tax code.
Meanwhile, New York State Troopers spotted the van, surrounded it, and - with weapons drawn- arrested the tourists. They handcuffed them, threw them into the back of the patrol car, and hauled them and their rabbit’s head back to the Enchanted Mountains. There, the local police interrogated them for two and a half hours. At the conclusion of the “interview,” they had a good laugh and released the men. To the Easter Bunny, however, this was no laughing matter. The tourists sued the county and its officers, claiming that police had violated their civil rights.
The court said the police had no reason to arrest the tourists. No bank had been robbed. Nor had anyone attempted to rob a bank. True, the men had “looked around,” but they were tourists and that’s what tourists do. Looking around isn’t illegal, nor is wearing a fake rabbit head. The court said, “It is hard to imagine why a true potential bank robber would don such a bizarre, attention-grabbing mask” if he were about to rob a bank. The judge noted that when robbing a bank, “stealth is preferred.”
Clearly this judge hadn’t seen the 1991 movie Point Break featuring robbers who wore Nixon masks. How inconspicuous is a Nixon mask? Moreover, at least one of the tourists owed a lot of money to the IRS. He probably needed some quick cash. Yet, the judge ruled that the Rascally Rabbit and his friend could take their claims to the jury.
There are many questions left unanswered by this case. If they weren’t going to rob a bank, why were these guys driving around with a giant fake rabbit’s head in their van? Where was the rest of the costume? Also, the entire episode was triggered by a child wearing her “Easter” dress. But April 23, 1992, was the week after Easter. Why was the child so dressed up? Who wears a rabbit costume a week after Easter? I may have discovered the answers to these questions.
In addition to its natural beauty, Cattaraugus County is famous for its annual Pond Skimming Party. In the frigid spring weather, locals don various costumes, enjoy the Margarita Bar, and try to ski down a snowy hill fast enough for the momentum to carry them across a watery pond without sinking. In photos from last year’s event, I saw a few costumed kids racing downhill in the snow and falling into the freezing water. This may explain the Easter dress. (Apparently, the county has no Child Protective Services agency.) I didn’t see any rabbit costumes in the photos. Perhaps the Easter Bunny no longer comes to Cattaraugus County. My favorites were the three men in togas wearing Mardi Gras beads and huge feathery masks. It must have been impressive to watch them hit the water. Togas, feathers and beads probably went flying everywhere.
For some reason, no one told the court about the Pond Skimming Party. Had the officers mentioned it, they would have had even less reason to have arrested the tourists. They had argued that wearing a rabbit costume was suspicious and warranted the arrest. However, wearing a costume during pond skimming season is not suspicious at all. Had the tourists mentioned the party, they would have had to explain why they only had the rabbit’s head. Perhaps the rest of the costume is in the bottom of the pond along with the togas that didn’t make it across. Maybe driving after drinking Margaritas would have been a probation violation. We’ll never know.
From what I can tell, the case eventually settled out of court. The Pond Skimming Party continues to be a popular annual event in the Enchanted Mountains. But if you go, leave the rabbit costume at home. The Easter bunny is no longer welcome in Cattaraugus County.
Sunday, April 1, 2012
Wednesday, March 14, 2012
Leprechauns and the Law - The Last Laugh
The European Union recently enacted a law protecting leprechauns. To appreciate this law and it impact, it’s important to learn about leprechauns. Perhaps the best source of information is a poem by Robert Dwyer Joyce. He tells of an Irish man who hears a “tick tack tic” one moonlit night. He follows the sound to a “shady nook” and spies a leprechaun. The little man is wearing a “scarlet coat and cap of green.” He has a jug of mountain dew by his side. He’s working away cobbling a tiny fairy dancing shoe. There is mischief in his face and a twinkle in his eye. The poet warns us that as the man laughed to think of catching the little fairy and his pot of gold, “the fairy was laughing too.” The man grabs the leprechaun and demands his gold. The fairy tells him that his purse is “in her hand”- “the lady by your side.” The man turns to see the lady and the leprechaun disappears. As every skilled leprechaun hunter knows, if you take your eyes off the leprechaun even for an instant, he will disappear. Joyce tells us that the man laughed “to think what a fool” he’d been. Joyce says “the fairy was laughing, too.”
But aren’t leprechauns the stuff of folklore? We know that the European lawmakers think they’re real. But what do our American courts tell us about leprechauns? This is what I found:
1. Leprechauns are very creative. In a contract dispute, one judge ruled that “It would require the imagination of a leprechaun to” interpret the contract to cover the situation before the court.
2. We love leprechauns. In a lawsuit over lawn ornaments, a judge noted that leprechauns “evoke feelings – positive, warm feelings in all but the most grumpy.”
3. Humans often hunt leprechauns looking for easy money. One judge cautioned against courts that create new grounds for lawsuits. He said such courts “invite parties and their lawyers to stalk lawsuits as if they were leprechauns.”
4. Leprechauns can disappear quickly. One lady suing for sexual harassment claimed that her employer sniffed her all over and then “ran off like a little leprechaun” with a “smirk on his face.”
5. Seeing a leprechaun may be a sign of dementia. In one competency hearing, the court decided that an older lady who saw leprechauns in her hospital room was incompetent. She tried to explain away the leprechaun vision by saying that the leprechaun was really a priest wearing a pointy hat who came to help her to the bathroom. I was buying her story until she mentioned the physician who did cartwheels over her bed as he explained her insurance benefits. We all know that doctors know nothing about health insurance.
6. Unfortunately, some evil doers have latched onto the leprechaun image. One court tells of a gang in Nevada whose members wear leprechaun tattoos. The state argued that the defendant’s wearing of the tattoo was evidence of his gang membership.
7. In prison, a “leprechaun” is a member of the Aryan Brotherhood who doesn’t wear tattoos. (These guys must have heard about the Nevada gang case.)
8. Another case involved a deputy who identified a small green pill as the drug “ecstasy” when he saw it on a suspect. He admitted that ecstasy pills usually have a leprechaun image stamped on them, but since the pill was green, he felt justified in seizing the pill even though it had no leprechaun stamp.
By the way, the lab confirmed the deputy’s suspicions - it was an ecstasy pill.
The people of Carlingford, Ireland, sponsored the European law protecting leprechauns. Claiming that their community is full of leprechauns, they sponsor annual leprechaun hunts for tourists. To give their claim more credibility, they lobbied to have their lands classified as a “Special Protection Area” under the “Birds Directive” laws of 1979. The lawmakers obliged and enacted a provision protecting the “flora, fauna” and “little people” of Carlingford.
Once again, the leprechauns have had the last laugh. The new law requires Carlingford to post signs in the area stating that “Hunters will be Prosecuted.” And, anyone who engages in “potentially damaging operations” to the “resting places” of the leprechauns will be prosecuted.
From what I can determine, British courts impose strict liability against anyone who “damages” the protected areas. So, if you show up, pay 5 Euro for your hunting license, and go trooping about the area looking for leprechauns, any incidental damage to the area resulting from your search is a violation of the law even if you didn’t intend to cause damage. A cautious tourist would be well advised by his legal counsel to avoid the leprechaun hunt. At least the little folk of Carlingford can rest easy now that they are legally protected! I ask you, who’s laughing now?
But aren’t leprechauns the stuff of folklore? We know that the European lawmakers think they’re real. But what do our American courts tell us about leprechauns? This is what I found:
1. Leprechauns are very creative. In a contract dispute, one judge ruled that “It would require the imagination of a leprechaun to” interpret the contract to cover the situation before the court.
2. We love leprechauns. In a lawsuit over lawn ornaments, a judge noted that leprechauns “evoke feelings – positive, warm feelings in all but the most grumpy.”
3. Humans often hunt leprechauns looking for easy money. One judge cautioned against courts that create new grounds for lawsuits. He said such courts “invite parties and their lawyers to stalk lawsuits as if they were leprechauns.”
4. Leprechauns can disappear quickly. One lady suing for sexual harassment claimed that her employer sniffed her all over and then “ran off like a little leprechaun” with a “smirk on his face.”
5. Seeing a leprechaun may be a sign of dementia. In one competency hearing, the court decided that an older lady who saw leprechauns in her hospital room was incompetent. She tried to explain away the leprechaun vision by saying that the leprechaun was really a priest wearing a pointy hat who came to help her to the bathroom. I was buying her story until she mentioned the physician who did cartwheels over her bed as he explained her insurance benefits. We all know that doctors know nothing about health insurance.
6. Unfortunately, some evil doers have latched onto the leprechaun image. One court tells of a gang in Nevada whose members wear leprechaun tattoos. The state argued that the defendant’s wearing of the tattoo was evidence of his gang membership.
7. In prison, a “leprechaun” is a member of the Aryan Brotherhood who doesn’t wear tattoos. (These guys must have heard about the Nevada gang case.)
8. Another case involved a deputy who identified a small green pill as the drug “ecstasy” when he saw it on a suspect. He admitted that ecstasy pills usually have a leprechaun image stamped on them, but since the pill was green, he felt justified in seizing the pill even though it had no leprechaun stamp.
By the way, the lab confirmed the deputy’s suspicions - it was an ecstasy pill.
The people of Carlingford, Ireland, sponsored the European law protecting leprechauns. Claiming that their community is full of leprechauns, they sponsor annual leprechaun hunts for tourists. To give their claim more credibility, they lobbied to have their lands classified as a “Special Protection Area” under the “Birds Directive” laws of 1979. The lawmakers obliged and enacted a provision protecting the “flora, fauna” and “little people” of Carlingford.
Once again, the leprechauns have had the last laugh. The new law requires Carlingford to post signs in the area stating that “Hunters will be Prosecuted.” And, anyone who engages in “potentially damaging operations” to the “resting places” of the leprechauns will be prosecuted.
From what I can determine, British courts impose strict liability against anyone who “damages” the protected areas. So, if you show up, pay 5 Euro for your hunting license, and go trooping about the area looking for leprechauns, any incidental damage to the area resulting from your search is a violation of the law even if you didn’t intend to cause damage. A cautious tourist would be well advised by his legal counsel to avoid the leprechaun hunt. At least the little folk of Carlingford can rest easy now that they are legally protected! I ask you, who’s laughing now?
Wednesday, February 1, 2012
Facebook and HIPAA: More Ways to Get In Trouble
After a rough day at work, an emergency room physician decided to let off some steam. She logged onto Facebook and wrote about an odd-ball patient. Because of confidentiality requirements imposed by her professional ethics and by HIPAA, the federal privacy regulations, the doctor knew better than to publish her patient’s name. Unfortunately, she put enough information about the patient in her post that her readers were able to figure out his identity. In the uproar that followed, the doctor lost her job and her staff privileges at the hospital. The Medical Board issued a formal reprimand and fined her. We don’t know yet whether the HIPAA police have taken action or whether the patient has filed an invasion of privacy lawsuit.
The case reminded me of a defamation suit from the 1950’s. It involved a book about a world-famous fashion store. (Note that I’m not telling you which one.) The author wrote that the models from New York and Paris were “call girls” and that wealthy men paid thousands of dollars to go out with the women. He wrote that the salesmen were homosexuals. He claimed that the saleswomen were cheaper than the models but were also available for hire. Of course, the store filed suit for defamation. The nine models employed by the store also filed suit. Of the store’s 25 salesmen, 15 filed suit. In addition, 30 of the 382 saleswomen filed a claim with the court.
The author asked the court to dismiss the employees’ suit. Because he had not published their names, he argued that he was not liable to them. The court ruled that even though the author had not identified the models by name, readers of the book could easily determine the models’ identities. Likewise, it ruled that readers would be able to figure out the names of the 25 salesmen. However, the court found that it would be very difficult to figure out the identities of the saleswomen mentioned in the book because the store had 382 saleswomen at the time. Accordingly, the court allowed the models and salesmen to go to the jury, but dismissed the claims of the saleswomen.
HIPAA prohibits unauthorized disclosure of protected “individually identifiable” information. In other words, if you can figure out the identity of the patient from the information disclosed, the information is protected. For example, if a physician says he is treating the Governor of North Carolina, most North Carolinians would know the name of the doctor’s patient.
Assume a nurse asks her Facebook prayer group to pray for “one of our beloved ministers and his wife.” She writes that the clinic where she works has diagnosed the preacher with a social disease. If there is more than one minister, the members of the prayer group wouldn’t know which minister the nurse had outed. Has the nurse violated HIPAA?
If a court were to look to the fashion store case for guidance, the answer might depend on how many ministers worked at the church. If there were 25 or fewer, the nurse would be liable. If the nurse belonged to a church with hundreds of ministers, she might not.
However, another recent case indicates that a health care provider might suffer punishment even when it is impossible to figure out the identity of the patient he writes about. The case involved two nurses who posted on a social media site cell phone pictures of a patient’s x-ray. The x-ray showed that the patient had a sex toy lodged in her body. Although the public couldn’t determine the patient’s name, the hospital fired the nurses. The hospital didn’t claim that the nurses had violated HIPAA. It fired them on the grounds that making fun of any patient in public was “unprofessional conduct.”
Clearly, businesses, especially health care facilities, need written social media policies and should educate employees about those policies. The policies should apply to any publication made by employees on Facebook, Twitter, MySpace and other social media sites. It should prohibit employees from identifying customers, patients, co-workers, suppliers, referral sources, supervisors, and others connected to the employer on those sites. It should also prohibit publishing photographs or x-rays related to work on the sites. Businesses should consider prohibiting posts that reflect poorly on the company, such as pictures showing employees in compromising situations. It may also require employees who post opinions on sensitive topics to include a note that the opinions do not reflect the views of the employer. Finally, the policies should specify how the employer will discipline employees who violate the regulations. Employees should sign a statement that they have a copy of the policies and agree to abide by their terms.
Meanwhile, we’ll all enjoy those wonderfully entertaining blogs, videos, and photos of ourselves and others at our worst – and best. And be glad that some of our parents still haven’t figured out how to turn on a computer.
The case reminded me of a defamation suit from the 1950’s. It involved a book about a world-famous fashion store. (Note that I’m not telling you which one.) The author wrote that the models from New York and Paris were “call girls” and that wealthy men paid thousands of dollars to go out with the women. He wrote that the salesmen were homosexuals. He claimed that the saleswomen were cheaper than the models but were also available for hire. Of course, the store filed suit for defamation. The nine models employed by the store also filed suit. Of the store’s 25 salesmen, 15 filed suit. In addition, 30 of the 382 saleswomen filed a claim with the court.
The author asked the court to dismiss the employees’ suit. Because he had not published their names, he argued that he was not liable to them. The court ruled that even though the author had not identified the models by name, readers of the book could easily determine the models’ identities. Likewise, it ruled that readers would be able to figure out the names of the 25 salesmen. However, the court found that it would be very difficult to figure out the identities of the saleswomen mentioned in the book because the store had 382 saleswomen at the time. Accordingly, the court allowed the models and salesmen to go to the jury, but dismissed the claims of the saleswomen.
HIPAA prohibits unauthorized disclosure of protected “individually identifiable” information. In other words, if you can figure out the identity of the patient from the information disclosed, the information is protected. For example, if a physician says he is treating the Governor of North Carolina, most North Carolinians would know the name of the doctor’s patient.
Assume a nurse asks her Facebook prayer group to pray for “one of our beloved ministers and his wife.” She writes that the clinic where she works has diagnosed the preacher with a social disease. If there is more than one minister, the members of the prayer group wouldn’t know which minister the nurse had outed. Has the nurse violated HIPAA?
If a court were to look to the fashion store case for guidance, the answer might depend on how many ministers worked at the church. If there were 25 or fewer, the nurse would be liable. If the nurse belonged to a church with hundreds of ministers, she might not.
However, another recent case indicates that a health care provider might suffer punishment even when it is impossible to figure out the identity of the patient he writes about. The case involved two nurses who posted on a social media site cell phone pictures of a patient’s x-ray. The x-ray showed that the patient had a sex toy lodged in her body. Although the public couldn’t determine the patient’s name, the hospital fired the nurses. The hospital didn’t claim that the nurses had violated HIPAA. It fired them on the grounds that making fun of any patient in public was “unprofessional conduct.”
Clearly, businesses, especially health care facilities, need written social media policies and should educate employees about those policies. The policies should apply to any publication made by employees on Facebook, Twitter, MySpace and other social media sites. It should prohibit employees from identifying customers, patients, co-workers, suppliers, referral sources, supervisors, and others connected to the employer on those sites. It should also prohibit publishing photographs or x-rays related to work on the sites. Businesses should consider prohibiting posts that reflect poorly on the company, such as pictures showing employees in compromising situations. It may also require employees who post opinions on sensitive topics to include a note that the opinions do not reflect the views of the employer. Finally, the policies should specify how the employer will discipline employees who violate the regulations. Employees should sign a statement that they have a copy of the policies and agree to abide by their terms.
Meanwhile, we’ll all enjoy those wonderfully entertaining blogs, videos, and photos of ourselves and others at our worst – and best. And be glad that some of our parents still haven’t figured out how to turn on a computer.
Saturday, January 7, 2012
Sex, Lies, and HIPAA
On New Years Eve, I love watching shows that list the best movies, novels, tunes, and news articles of the year. I decided to create my own list by naming the best lawsuit of 2011 – at least in my opinion. This isn’t the biggest money judgment of the year, but it has the most interesting set of facts that I found. Bear in mind that this case hasn’t gone to a jury at this point. We only have the Plaintiff’s side of the story. But according to her . . .
Arizona’s nurse Liska was a single mother of two young sons. For years, she had suffered from many orthopedic ailments. As if she weren’t busy enough, in 2007, she began an affair with one of her treating physicians. The man was married and the father of “several” children. Not altogether happy with Ms. Liska’s appearance, the doctor-boyfriend paid for her to have a breast enhancement procedure. The tab came to over $8000.00. Perhaps to keep the bill down, he prescribed “legitimate” medications for his lover while she was recovering from the breast surgery. Among other medications, he called in a prescription for Soma on April 9, 2008. Shortly thereafter, Liska ended the affair.
On August 25, 2008, Liska obtained a refill of the Soma prescription. During the process, the pharmacy contacted her former boyfriend to verify the prescription. The jilted doctor denied having prescribed the drug. The pharmacy reported the problem to the local police department. Detective David Dodge took the case.
To begin his investigation, Dodge contacted the physician. The doctor denied writing the prescription and claimed that he did not know Liska. Later the doctor sent an anonymous letter to the medical board, and various hospitals where Liska worked. He claimed that a doctor at one of the hospitals was writing prescriptions in exchange for sex from Liska and her “nurse friends”. He also made false reports to the Arizona Board of Nursing.
Meanwhile, Dodge went to Liska’s home. He had obtained her ten-year prescription history from Walgreen’s. He confronted her with the report and accused her of prescription fraud. He told her that unless she confessed, he would arrest her right then. He told her that she could not leave his presence or terminate the interview. He made numerous other threats, but Liska denied wrongdoing.
After a while, Dodge told Liska she would have to go to the police department. He allowed her to change from her pajamas, but insisted on watching her change clothes in case she might try to escape. (During the time of these events, Liska was hobbling around on a broken leg that was in a cast.)
The detective continued his harassment at the police department. He refused to allow Liska to call an attorney and did not read her any Miranda warnings. After continuing his threats for several hours, he eventually allowed her to leave without arresting her. Dodge then met with Liska’s Director of Nursing. Shortly after that meeting, Liska lost her job. The discharge letter falsely stated that the employer had conducted its own investigation and confirmed Liska’s arrest. Dodge then went to the Nursing Board.
Weeks later, the Police Department disciplined Dodge. It later issued a letter stating that Liska had committed no crime “whatsoever.” The Nursing Board dropped its case against Liska in 2009.
Not surprisingly, Liska decided to fight back. She sued the United States, Dodge and his wife, the Police Department, the City, the Police Chief and his wife, Walgreens, the former boyfriend and his wife along with various other people. The motions to dismiss soon followed in 2010.
Walgreens argued that it had legal authority to give Liska’s prescription records to the police. The court agreed. It noted that HIPAA allows providers to disclose information for law enforcement purposes in compliance with a subpoena, summons or “authorized investigative demand.” They may also disclose to a law enforcement official protected health information that may be evidence of criminal conduct that occurred on the premises. Believing that Liska had obtained drugs from the store by falsifying a prescription, Walgreens legally reported her prescription history to the police.
The court dropped Walgreens from the lawsuit. However, the case will go on. Even at this stage, the case has entertainment value and offers lessons. The obvious lesson is that, in a case like Liska’s, pharmacies may comply with police requests for information. It’s also a bad idea for a health care provider to have intimate relations with a patient. In North Carolina, that behavior often results in a licensing board taking away the provider’s license to practice. We’ll have to wait and see how the case is resolved before we make any other judgments. I’ll try to keep you posted.
Arizona’s nurse Liska was a single mother of two young sons. For years, she had suffered from many orthopedic ailments. As if she weren’t busy enough, in 2007, she began an affair with one of her treating physicians. The man was married and the father of “several” children. Not altogether happy with Ms. Liska’s appearance, the doctor-boyfriend paid for her to have a breast enhancement procedure. The tab came to over $8000.00. Perhaps to keep the bill down, he prescribed “legitimate” medications for his lover while she was recovering from the breast surgery. Among other medications, he called in a prescription for Soma on April 9, 2008. Shortly thereafter, Liska ended the affair.
On August 25, 2008, Liska obtained a refill of the Soma prescription. During the process, the pharmacy contacted her former boyfriend to verify the prescription. The jilted doctor denied having prescribed the drug. The pharmacy reported the problem to the local police department. Detective David Dodge took the case.
To begin his investigation, Dodge contacted the physician. The doctor denied writing the prescription and claimed that he did not know Liska. Later the doctor sent an anonymous letter to the medical board, and various hospitals where Liska worked. He claimed that a doctor at one of the hospitals was writing prescriptions in exchange for sex from Liska and her “nurse friends”. He also made false reports to the Arizona Board of Nursing.
Meanwhile, Dodge went to Liska’s home. He had obtained her ten-year prescription history from Walgreen’s. He confronted her with the report and accused her of prescription fraud. He told her that unless she confessed, he would arrest her right then. He told her that she could not leave his presence or terminate the interview. He made numerous other threats, but Liska denied wrongdoing.
After a while, Dodge told Liska she would have to go to the police department. He allowed her to change from her pajamas, but insisted on watching her change clothes in case she might try to escape. (During the time of these events, Liska was hobbling around on a broken leg that was in a cast.)
The detective continued his harassment at the police department. He refused to allow Liska to call an attorney and did not read her any Miranda warnings. After continuing his threats for several hours, he eventually allowed her to leave without arresting her. Dodge then met with Liska’s Director of Nursing. Shortly after that meeting, Liska lost her job. The discharge letter falsely stated that the employer had conducted its own investigation and confirmed Liska’s arrest. Dodge then went to the Nursing Board.
Weeks later, the Police Department disciplined Dodge. It later issued a letter stating that Liska had committed no crime “whatsoever.” The Nursing Board dropped its case against Liska in 2009.
Not surprisingly, Liska decided to fight back. She sued the United States, Dodge and his wife, the Police Department, the City, the Police Chief and his wife, Walgreens, the former boyfriend and his wife along with various other people. The motions to dismiss soon followed in 2010.
Walgreens argued that it had legal authority to give Liska’s prescription records to the police. The court agreed. It noted that HIPAA allows providers to disclose information for law enforcement purposes in compliance with a subpoena, summons or “authorized investigative demand.” They may also disclose to a law enforcement official protected health information that may be evidence of criminal conduct that occurred on the premises. Believing that Liska had obtained drugs from the store by falsifying a prescription, Walgreens legally reported her prescription history to the police.
The court dropped Walgreens from the lawsuit. However, the case will go on. Even at this stage, the case has entertainment value and offers lessons. The obvious lesson is that, in a case like Liska’s, pharmacies may comply with police requests for information. It’s also a bad idea for a health care provider to have intimate relations with a patient. In North Carolina, that behavior often results in a licensing board taking away the provider’s license to practice. We’ll have to wait and see how the case is resolved before we make any other judgments. I’ll try to keep you posted.
Sunday, December 4, 2011
Why You Gotta Be So Nice?
I love Taylor Swift’s music. Now, before you judge me, I also love Beethoven, Turlough O’Carolan, Anonymous 4, and Led Zeppelin. One of my favorite Swift songs is the current chart buster “Why You Gotta Be So Mean?” I heard the song for the first time after a particularly upsetting court case. My client was an honest, hardworking man who was being badly abused by the defense lawyer.
As we left the latest hearing on the case, John balled up his fists as his face turned blood red. Loud enough for everyone in a two-mile radius to have heard him, he screamed at me. “That lawyer stood there and lied! And you didn’t call him out on it. You’re too d….d nice. That’s the problem here. I ought take that guy out back and kick his a . . .” John’s wife tried to calm him down. “She did call him a liar, John. She just didn’t use those words. You weren’t listening.” But John had heard enough and stormed off.
John was right. The lawyer had lied and I would have loved to let him have it, but I held back. Part of my problem was the memory of a case I tried long ago in District Court. My client’s soon-to-be ex-wife had repeatedly perjured herself on the witness stand. I was able to rip her up on cross-examination, but despite what I thought was a stirring performance on my part, the judge appeared to be dozing off. I wasn’t sure he had heard a word I said. So in my closing argument, I pointed at the woman and loudly said to the judge, “That woman’s a bald faced liar, judge! The truth isn’t in her!” The judge appeared to be totally disinterested in my theatrics, but the “woman” and her kin folk were ready to explode. The bailiff put his hand on his gun. The judge announced that he would render a decision in a week or two and that he wanted to see me in chambers.
Thinking he was going to congratulate me on my brilliance, I was surprised when he wheeled around and said, “Don’t you ever pull a stunt like that in my courtroom again. You had those people so riled up, I had to postpone my ruling.” I tried to explain to the judge that I wasn’t sure he knew that she was lying. “Do you think the citizens of Orange County pay me to sit up here and be stupid?” he replied. “I’m telling you NOW – you do that again, and you’ll be wearing an orange jumpsuit while you cool your jets in a cell with some of our county’s finest liars!” For years after that, I thought the judge was out of line, but then the Supreme Court decided the Couch case.
Couch was a hotly contested medical malpractice claim. In her closing argument, the patient’s lawyer repeatedly said that the defense lawyer and his witnesses “came up here and told lies. In your face lies! . . . They didn’t care. They tried to make fools of everybody in the court room. . .They were not even smooth about it.” Although the jury awarded $2.5 million in damages, the court assessed $53,000 in penalties against the patient’s lawyer for her unprofessional conduct in calling defense counsel and witnesses “liars.” My judge had let me off cheaply!
Before John’s case was heard, I had filed a brief with the court. In it, as diplomatically as I could, I had pointed out “inconsistencies” with defense counsel’s position. Apparently, I went a bit too far. In his reply brief, he argued to the court that I had unethically attacked his character. I knew I was on thin ice when John’s hearing began.
There was another reason that I soft pedaled my attack in John’s case. Because of the posture of the case, we stood a risk of winning the case and getting little in damages. I knew that we had a better chance of getting more money if I could negotiate a settlement with the other side. That lawyer was not likely to be very generous if I called him a liar in open court.
I had a client in an earlier case threaten to fire me for being too nice to defense counsel. As it turned out, we lost that case and the judge ordered my client to pay some steep court costs to the defense. Knowing that my client was strapped for cash and feeling badly for him, the defense lawyer told us to forget about it. She had talked to her clients and they agreed to drop their claim for court costs.
So, I agree with Taylor Swift. Being mean is rarely a good idea. After all, somebody might write a song about you. If the song takes off, the whole world will know that you are “mean” and “pathetic” and a “bully” and that “All you ever are is MEAN!”
As we left the latest hearing on the case, John balled up his fists as his face turned blood red. Loud enough for everyone in a two-mile radius to have heard him, he screamed at me. “That lawyer stood there and lied! And you didn’t call him out on it. You’re too d….d nice. That’s the problem here. I ought take that guy out back and kick his a . . .” John’s wife tried to calm him down. “She did call him a liar, John. She just didn’t use those words. You weren’t listening.” But John had heard enough and stormed off.
John was right. The lawyer had lied and I would have loved to let him have it, but I held back. Part of my problem was the memory of a case I tried long ago in District Court. My client’s soon-to-be ex-wife had repeatedly perjured herself on the witness stand. I was able to rip her up on cross-examination, but despite what I thought was a stirring performance on my part, the judge appeared to be dozing off. I wasn’t sure he had heard a word I said. So in my closing argument, I pointed at the woman and loudly said to the judge, “That woman’s a bald faced liar, judge! The truth isn’t in her!” The judge appeared to be totally disinterested in my theatrics, but the “woman” and her kin folk were ready to explode. The bailiff put his hand on his gun. The judge announced that he would render a decision in a week or two and that he wanted to see me in chambers.
Thinking he was going to congratulate me on my brilliance, I was surprised when he wheeled around and said, “Don’t you ever pull a stunt like that in my courtroom again. You had those people so riled up, I had to postpone my ruling.” I tried to explain to the judge that I wasn’t sure he knew that she was lying. “Do you think the citizens of Orange County pay me to sit up here and be stupid?” he replied. “I’m telling you NOW – you do that again, and you’ll be wearing an orange jumpsuit while you cool your jets in a cell with some of our county’s finest liars!” For years after that, I thought the judge was out of line, but then the Supreme Court decided the Couch case.
Couch was a hotly contested medical malpractice claim. In her closing argument, the patient’s lawyer repeatedly said that the defense lawyer and his witnesses “came up here and told lies. In your face lies! . . . They didn’t care. They tried to make fools of everybody in the court room. . .They were not even smooth about it.” Although the jury awarded $2.5 million in damages, the court assessed $53,000 in penalties against the patient’s lawyer for her unprofessional conduct in calling defense counsel and witnesses “liars.” My judge had let me off cheaply!
Before John’s case was heard, I had filed a brief with the court. In it, as diplomatically as I could, I had pointed out “inconsistencies” with defense counsel’s position. Apparently, I went a bit too far. In his reply brief, he argued to the court that I had unethically attacked his character. I knew I was on thin ice when John’s hearing began.
There was another reason that I soft pedaled my attack in John’s case. Because of the posture of the case, we stood a risk of winning the case and getting little in damages. I knew that we had a better chance of getting more money if I could negotiate a settlement with the other side. That lawyer was not likely to be very generous if I called him a liar in open court.
I had a client in an earlier case threaten to fire me for being too nice to defense counsel. As it turned out, we lost that case and the judge ordered my client to pay some steep court costs to the defense. Knowing that my client was strapped for cash and feeling badly for him, the defense lawyer told us to forget about it. She had talked to her clients and they agreed to drop their claim for court costs.
So, I agree with Taylor Swift. Being mean is rarely a good idea. After all, somebody might write a song about you. If the song takes off, the whole world will know that you are “mean” and “pathetic” and a “bully” and that “All you ever are is MEAN!”
Saturday, December 3, 2011
The Handshake
This September, I took my first vacation in years and headed off to Ireland. Because you are supposed to relax while you are on vacation, I made every effort to avoid working. Yet, when a North Carolina Court of Appeals ruling from Orange County made the headlines in Ireland, I had to read the case.
The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.
The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.
Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.
But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?
Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.
Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.
I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.
In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.
My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.
Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.
The Defendant in the case suffered from genital herpes. He had an affair with the Plaintiff’s wife. We don’t know whether the Defendant warned the Plaintiff’s wife about the herpes issue. We do know that he failed to warn her Husband that he was planning on sleeping with the wife and that he might give her herpes. Unfortunately, the wife became infected with herpes during the course of the affair. Shortly thereafter she infected her husband.
The Plaintiff-Husband sued the Defendant-Boyfriend for “negligent infliction of a sexually transmitted disease.” The Court ruled that “a person is liable if he negligently exposes another to a contagious or infectious disease.” It held that a person who knows “or should know” that he has a sexually transmitted disease must warn those persons with whom “he expects to have sex.” It then held that the Defendant also owed a duty to warn the spouses of his potential sex partners. I spent the rest of my vacation pondering the repercussions of the Court’s holding.
Clearly, both religious and public health authorities should applaud the courage of the Court. If the law requires people to warn the spouses of those with whom they are planning an affair of any potential disease, marital infidelity would decrease. If they must also warn unmarried sex partners, promiscuity should also decline. This in turn would have the positive side effect of slowing the spread of infectious diseases and promoting the integrity of marriage and the family. It should reduce the incidence of unwanted pregnancies and abortion.
But then I wondered whether the holding could be applied to other settings. For example, this time of year, we are all encouraged to get a flu shot to avoid catching and spreading the flu. If you haven’t gotten a flu shot, do you need to warn people that you may be infectious? Should you wear some sort of a sign? Should you stay away from movie theaters, grocery stores, school, work and other crowded areas to avoid the possibility of infecting numerous potential plaintiffs and having to defend a class action lawsuit?
Just last week, I thought about this case while I was in a meeting with my banker. Shortly after sitting down with him, I couldn’t help but notice that he had a very runny nose. He had no handkerchief or tissue and used his hand to wipe away the sniffles. This was the same hand he had earlier extended to me as a welcome and the same hand with which he picked up a pen for me to use to sign some papers.
Realizing that he was exposing me to an infectious disease, I determined to avoid touching my face until I could wash my hands. About then, my own nose began to itch. Over the next thirty minutes, the itch became unbearable. I eventually used my forearm to rub my nose. Unfortunately, this attracted attention from the bank security guard who began eyeing me and the sleeve of my jacket suspiciously. When the meeting finally ended, I headed out to my car. In the parking lot, I ran into an old friend. Overjoyed and distracted by his unexpected appearance, I absentmindedly shook his hand.
I spent the rest of the afternoon worrying about whether I should call him and warn him about the banker’s sniffles. Did I need to call his wife and children and also warn them? Did I have any insurance coverage for negligently exposing my friend and his family to this cold? I worried myself into a tizzie for a couple of days. I was able to finally relax on the second day after my visit to the bank when I still had no cold symptoms. Luckily we had all escaped the banker’s contagion. Perhaps he was just having an allergy attack.
In view of the Court’s ruling, I became concerned about the potential liability of shaking hands and decided to research the custom. I’ve learned that even the ancient Egyptians shook hands. Offering a hand that carried no weapons showed your good intentions to the person you were greeting. Of course Egyptians didn’t know about germ warfare.
My mother, who was always very concerned about germs, taught me that a gentleman does not try to shake a lady’s hand until she offers it to him. She encouraged me to “keep my hands to myself.” My research indicates however, that this tradition is no longer acceptable. It is now considered rude for a lady, especially in a business setting, to refuse to shake hands. Unfortunately for us germ-a-phobes, it is considered even more rude to offer to shake hands while wearing gloves.
Billy Crystal and I can only hope that the Court of Appeals ruling in the herpes case will cause our citizens to rethink the handshaking tradition. It’s bad enough to miss time from work feeling too sick to have fun. Having to lay in bed worrying about getting sued for sharing cold or flu germs adds insult to injury.
Tuesday, August 2, 2011
Murder Ballads of North Carolina
From Tom Dooley’s hanging to Little Sadie’s killing, North Carolina is famous for its murder ballads. It’s interesting that our State Supreme Court heard cases involving many of the alleged evil doers. From those opinions, you can learn facts that the songwriters left out.
Tom Dooley was actually Tom Dula, a Confederate soldier and violin player who returned to his home in Wilkes County after the war. According to the ballad, told from Tom’s perspective, he met his love, Laura Foster, on a mountain and “took her for my wife.” He then “took her around the hillside” and “stabbed her with my knife.”
According to court records, Laura Foster was seen riding her father’s mare with a bundle of clothes in her lap. She told a friend she was headed to the “Bates” place to meet up with Dula. She apparently thought they were going to run off to be married. A few weeks later, her body was found buried in a “laurel thicket” near the Bates place. She had been stabbed in her left side.
The Court noted that Dula “was in the habit of criminal intercourse with both Foster and Ann Melton.” The women were cousins. He allegedly “contracted a disease” from Foster and “communicated it to” Melton. As Melton was married to another man, this probably caused significant trouble for both Melton and Dula. Witnesses said Dula threatened to “put through” the person who gave him the disease.
The same day that Foster rode off for the Bates place, Ann Melton left her home. Staying out all night, Melton returned home the following morning, with her shoes and dress wet. Later, a witness took investigators to Foster’s grave, claiming that Melton had showed her where Foster was buried.
Meanwhile, Dula went missing. After authorities captured him in Tennessee, they charged him and Ann Melton with Foster’s murder. The two were tried separately.
Former Governor Zeb Vance defended Dula. The jury found Dula guilty, but Vance successfully appealed the conviction. After a second jury found Dula guilty, Vance again appealed. This time the Supreme Court found no error in the trial and upheld Dula’s conviction. On the day that he was hanged, he declared his innocence from the scaffold, but also handed his lawyer a note stating that he alone killed Foster. The note may have helped Vance defend Melton who was found not guilty in her trial.
Years later three brothers named Dula assaulted a Justice of the Peace in Wilkes County. One used a maddox, the other used a knife, and the third used a long pole. The State Supreme Court upheld their convictions.
In addition to Dula’s case, our Court heard the case of Peter DeGraff who in the late 1800’s killed Ellen Smith in Winston-Salem. Both the ballad, “Poor Ellen Smith” and the court records tell us that Ellen was shot in the heart. The Court reports that a letter was “found in her bosom” allegedly written by DeGraff. The note asked her to meet him the night she was killed. The ballad reports that DeGraff was sentenced to twenty years for Ellen’s murder, but other research indicates that he was hanged. He confessed his guilt from the scaffold.
In Morganton, in the 1830’s, Frankie Silver killed her husband, Charlie, with an axe blow to his neck. She claimed he was loading his gun to shoot her at the time. Charlie had a reputation of beating his wife. However, according to the Ballad of Frankie Silver, she killed him because she caught him cheating on her. The Court doesn’t tell us many of the facts of the case. It found no error in her trial and she was hanged for her husband’s death.
Ballads also tell of the murder of “Omie Wise” who was beaten to death by her boyfriend, John Lewis, in Randolph County. He threw her body in a river in Asheboro. I find no record of his appeal to our Supreme Court. That may be due to his confession of guilt in the case.
Little Sadie was killed by her beloved in Thomasville. He shot her and ran off to Jericho, North Carolina, before being caught. According to the ballad, he was sentenced to 41 years in prison for her death.
The existence of so many North Carolina murder ballads shouldn’t cause alarm. I don’t think we have more murderers than other states. We just have more ballad writers. And our courts apparently have done their jobs well as most of the killers confessed to their crimes before their executions. It’s probably a good idea, however, to be sure that your “significant other” doesn’t own a gun or a hatchet. Men named Johnnie or Charlie should probably avoid women named Frankie. Or maybe we should all heed the words of another old ballad and “stay single all the days of your life.”
Tom Dooley was actually Tom Dula, a Confederate soldier and violin player who returned to his home in Wilkes County after the war. According to the ballad, told from Tom’s perspective, he met his love, Laura Foster, on a mountain and “took her for my wife.” He then “took her around the hillside” and “stabbed her with my knife.”
According to court records, Laura Foster was seen riding her father’s mare with a bundle of clothes in her lap. She told a friend she was headed to the “Bates” place to meet up with Dula. She apparently thought they were going to run off to be married. A few weeks later, her body was found buried in a “laurel thicket” near the Bates place. She had been stabbed in her left side.
The Court noted that Dula “was in the habit of criminal intercourse with both Foster and Ann Melton.” The women were cousins. He allegedly “contracted a disease” from Foster and “communicated it to” Melton. As Melton was married to another man, this probably caused significant trouble for both Melton and Dula. Witnesses said Dula threatened to “put through” the person who gave him the disease.
The same day that Foster rode off for the Bates place, Ann Melton left her home. Staying out all night, Melton returned home the following morning, with her shoes and dress wet. Later, a witness took investigators to Foster’s grave, claiming that Melton had showed her where Foster was buried.
Meanwhile, Dula went missing. After authorities captured him in Tennessee, they charged him and Ann Melton with Foster’s murder. The two were tried separately.
Former Governor Zeb Vance defended Dula. The jury found Dula guilty, but Vance successfully appealed the conviction. After a second jury found Dula guilty, Vance again appealed. This time the Supreme Court found no error in the trial and upheld Dula’s conviction. On the day that he was hanged, he declared his innocence from the scaffold, but also handed his lawyer a note stating that he alone killed Foster. The note may have helped Vance defend Melton who was found not guilty in her trial.
Years later three brothers named Dula assaulted a Justice of the Peace in Wilkes County. One used a maddox, the other used a knife, and the third used a long pole. The State Supreme Court upheld their convictions.
In addition to Dula’s case, our Court heard the case of Peter DeGraff who in the late 1800’s killed Ellen Smith in Winston-Salem. Both the ballad, “Poor Ellen Smith” and the court records tell us that Ellen was shot in the heart. The Court reports that a letter was “found in her bosom” allegedly written by DeGraff. The note asked her to meet him the night she was killed. The ballad reports that DeGraff was sentenced to twenty years for Ellen’s murder, but other research indicates that he was hanged. He confessed his guilt from the scaffold.
In Morganton, in the 1830’s, Frankie Silver killed her husband, Charlie, with an axe blow to his neck. She claimed he was loading his gun to shoot her at the time. Charlie had a reputation of beating his wife. However, according to the Ballad of Frankie Silver, she killed him because she caught him cheating on her. The Court doesn’t tell us many of the facts of the case. It found no error in her trial and she was hanged for her husband’s death.
Ballads also tell of the murder of “Omie Wise” who was beaten to death by her boyfriend, John Lewis, in Randolph County. He threw her body in a river in Asheboro. I find no record of his appeal to our Supreme Court. That may be due to his confession of guilt in the case.
Little Sadie was killed by her beloved in Thomasville. He shot her and ran off to Jericho, North Carolina, before being caught. According to the ballad, he was sentenced to 41 years in prison for her death.
The existence of so many North Carolina murder ballads shouldn’t cause alarm. I don’t think we have more murderers than other states. We just have more ballad writers. And our courts apparently have done their jobs well as most of the killers confessed to their crimes before their executions. It’s probably a good idea, however, to be sure that your “significant other” doesn’t own a gun or a hatchet. Men named Johnnie or Charlie should probably avoid women named Frankie. Or maybe we should all heed the words of another old ballad and “stay single all the days of your life.”
Subscribe to:
Posts (Atom)
