Good Fences Make Good Neighbors

      Ms. Nelson was Dr. Knight’s dental assistant.  Both were married and both had children.  The first ten years of their working relationship were great.   Ms. Nelson had a job she loved and Dr. Knight had a highly skilled assistant.  Then, as each of them began to disrespect professional boundaries, things got out of hand. 

Dr. Knight started complaining to Nelson that her clothes were too tight.  Rather than wearing clothes that were more loosely fitting, Nelson argued with the doctor and ignored his complaint.  Later, Nelson decided to talk to her boss about her unsatisfying sex life.  Soon, the two began sending each other intimate personal text messages.            

Eventually, Dr. Knight’s wife put the smack down on her husband and Ms. Nelson found herself in an exit interview with Dr. Knight and his preacher.  She left the meeting with one month’s severance pay.  Dr. Knight left the meeting to face the expense of finding and training a new employee.  Things got even more interesting when Nelson filed a sexual discrimination suit that has garnered unflattering nationwide attention for each party.

          It’s hard to imagine any way that Dr. Knight could have handled things more ineptly.  Regarding the tight clothes, most medical and dental practices have a written dress code. When Ms. Nelson decided to argue about her wardrobe, Dr. Knight and his office manager should have immediately met with Ms. Nelson to remind her that Dr. Knight had the right to determine the appropriate attire for employees on the job.  Ms. Nelson could either comply or leave.  The office manager should have documented the discussion in Nelson’s personnel file. 

Nelson’s comments about her sex life should have led to another meeting.  Office policies typically prohibit on-the-job discussions about sex, politics, and religion. 

Instead of respecting professional boundaries, Dr. Knight  encouraged Nelson’s behavior.  He asked questions about her sex life and graphically described - in writing -  his reactions to her attractiveness.  I’m sure Nelson’s lawyers appreciated Knight’s documenting his feelings in text messages.

When Knight finally decided to fire Nelson, his exit interview strategy was another lesson in what not to do.  An exit interview should take place in a manner that will not embarrass the employee or publicize the fact that the employer is firing the employee.  Knight’s decision to have his preacher attend the meeting could have resulted in charges of invasion of privacy and mental distress.  While employers should have a witness at an exit interview, the head of personnel or office manager should fill that role.  Immediately after the interview, the witness should escort the former employee off of the premises and document the discussion between the employer and former employee. 

Although Knight’s decision to give Nelson one month’s severance pay was generous, he failed to require her to sign a release of liability before giving her the money.  Having failed to obtain a release, he left himself open for the sexual discrimination lawsuit that Nelson eventually filed.

          North Carolina courts will punish those who step outside of the bounds of an appropriate working relationship.  In a Burlington case, a man ran off with a co-worker and divorced his wife.  The wife won a $1 million judgment against the co-worker.  Significantly, professional malpractice insurance policies don't cover these damages.  The IRS doesn't recognize them as legitimate deductions for income tax purposes.  Finally, the bankruptcy court cannot discharge them.  Perhaps the movie that was inspired by the case garnered some money for the defendant in addition to the bad publicity.

         The Court dismissed Nelson’s discrimination claim against Dr. Knight.  Although it didn’t approve of Knight’s behavior, it held that he wasn’t guilty of sexual discrimination.  It noted that he always hired female staff members and that he replaced Nelson with another female.  Her argument that he only fired her because he was sexually attracted to females fell on deaf ears.  According to press reports, Nelson is now working as a waitress.   

          Perhaps Hollywood will once again come to the rescue.  Let’s hope not.

The Conspiracy of Silence

A few days ago, a North Carolina school teacher pled guilty to sexually abusing several young boys.  The school where he had previously worked allowed him to quit after it received “verbal complaints” about him.  He is also accused of sexually abusing children even earlier when he worked as a camp counselor in another state.  If his former employers knew that he was abusing children, they did not warn anyone.  You might wonder if this happens often.  You might also wonder why it happens.

Problem employees present two legal concerns to employers.  First, employers want to avoid being sued for wrongfully firing the employee.  Second, employers want to avoid being sued for defamation in connection with a negative job recommendation.  Accordingly, employers will offer a “neutral” job reference if the employee voluntarily resigns and agrees not to file a wrongful discharge suit.  While this approach may protect the employer, it does nothing to protect the next person who hires the problem employee.  

A few years ago, Allstate fired one of its insurance salesmen.  He had made death threats against coworkers and had brought a pistol to the office.  It appears that he cut a deal with Allstate in connection with his termination.  Allstate provided him with a letter explaining that he had voluntarily resigned in connection with corporate restructuring.  Relying on this letter, Fireman’s Fund hired the salesman.  

Things did not work out at Fireman’s Fund.  Shortly after hiring the salesman, the company fired him.  In retaliation, the salesman went on a shooting rampage killing three former co-workers and injuring several others.  The Florida court ruled that the families of the dead and injured could pursue their case against Allstate on the grounds that Allstate had provided a misleading reference letter.

In response to the case, many employers decided not to provide references for former employees.  Concerned that these policies would result in more situations like the Allstate case, many states, including North Carolina, enacted laws giving employers immunity from suit when they provide a reference for a former employee.  It is very important to note that these statutes do not protect a former employer who gives “false” information.  Attorneys for employees simply have to allege that the employer gave false negative statements about their clients.  Accordingly, our statute provides little protection to employers.  Most continue the “conspiracy of silence.”  That silence has contributed to many deaths and injuries.

In a New York case, a grammar school teacher sexually assaulted a child.  The teacher’s previous employer did not warn the grammar school that the teacher had been charged with sexual misconduct while in its employ.

In Michigan, a previous employer failed to warn of its employee’s history of violence and drug use while in its employ.  In his new job, the man beat and murdered a fellow employee. 

In a Minnesota case, a regional church office knew that one of the pastors had sexually abused a child.  Nevertheless, it withheld this information from the local church that hired the pastor.  The results were predictable.

The courts usually rule that absent a “special relationship of moral duty,” former employers have no obligation to warn of dangerous workers.  You would think that no more “special relationship” could exist than that of a school or church and the defenseless children in their care.  Until the courts or the legislature recognize the irreparable harm that current policies cause, children will continue to be raped by repeat offenders and co-workers will continue to fall victim to criminals.

Lawmakers should require employers to report criminal actions committed by employees.  They should also prohibit employees from suing employers who comply with this law.  North Carolina has already taken one step down this path.    Our laws require employers and others to report nurses who are incompetent or dangerous to the Board of Nursing.  The Board regularly receives reports when facilities discipline or fire nurses.  The Board then shares that information with potential employers.  Hopefully, our state will expand the coverage of that law to other settings. Until then, we can expect that children and others will continue to be victimized by the “conspiracy of silence.”

The Illusion of Privacy

The feds are at it again.  They’ve spent countless months writing up new HIPAA privacy regulations that went into effect this year.  Those amendments will cost the health care industry approximately $225.4 million dollars.  Additional amendments to HIPAA regulations are already in the works.  Judging from the hundreds of thousands of privacy breaches that have been reported since the enactment of HIPAA, our medical information remains far from private.  In truth, privacy has always been illusory. I’ll share a few stories.

Many years ago, a major health care clinic in the western part of our state hired me to provide confidentiality training for its staff.  We spent six hours reviewing privacy laws and exploring ways to protect patient information.  After we finished, I was worn out.  I decided to spend the night at a local hotel rather than drive home.  Kicking off my shoes, I tuned into the local news as I chowed down on a cheeseburger and fries. 

Apparently, there was nothing going on that day in the small community where the clinic was located.  In fact, it was so quiet that our privacy meeting was a major local news item.  While we were in our meeting room that day, a TV crew had come to the clinic and talked with the front desk personnel about the course on confidentiality.  To spice up the story, the TV cameraman filmed the clinic and the patients who were seated in the waiting room.  As I watched in horror, the TV news plastered their faces across the screen. Mission accomplished.

Back in the 1990’s, I watched as a local news anchor interviewed a county health director about his efforts to stamp out venereal disease.  As he explained his public health initiatives, the news team aired an archived film clip of a nurse drawing a blood specimen from a smiling patient.  I’m sure he wasn’t smiling after seeing himself on TV as the poster boy for VD.

I attended the grand opening of a health clinic in another part of our state.  It began with a tour of the new facility.  The clinic administrator showed us the “Family Planning” clinic, the “Communicable Disease” waiting area, and the part of the clinic assigned for mental health patients.  I mentioned my concern that anyone who walked into the communicable disease waiting room would be able to determine that people sitting there were afflicted with a contagious disease.  He assured me not to worry.  The clinics were scheduled on separate days.  So if you watch the parking lot on Wednesday, you’ll know to stay clear of all the people arriving that day – at least until their antibiotics kick in.

Not too long ago, a large law firm had a celebratory dinner at one of Raleigh’s most prestigious restaurants.  Unfortunately, the restaurant served spoiled food that night.  Many of the patrons ended up on the front lawn vomiting while they waited for EMS.  Once again, the local news featured the story – complete with film of many lawyers looking far less than professional.

When my son was in a car wreck, we were ushered into a stall at the emergency room to wait for the doctor to examine him.  Apparently, the lady in the stall next to us had arrived earlier.  We could not help but listen as the nurses, who were trying to figure out how much booze the lady had consumed, asked numerous questions about her activities that night.  Afterwards, impressed by what I’d heard, I left our stall for a stroll around the ER.  I got a good look at our neighbor and saw her last name on the triage board hanging on the wall.  Realizing that anyone there could tell why ER patients were present, I hurriedly checked for my son’s name.  Fortunately, the entry for him clearly indicated that he’d only been in a wreck.

But the most remarkable privacy goof I’ve seen took place at a local ambulatory care center.  A friend of mine had broken her ankle and I took her to the center for a minor surgical procedure.  As I sat in the packed waiting room, a physician came running out of the surgery suites in a state of excitement.  He approached a man and began explaining that the D&C procedure he had just completed on the man’s wife was a great success.  But he expressed concern about the fact that the inside of her uterus seemed covered by a dark, sticky, oily substance that he could not identify.  Neither I nor any of the other 60 people in the room could offer any helpful suggestions, but we each waited with baited breath to get a look at this woman.  When the unfortunate lady came out, we couldn’t help but stare at the woman in the wheel chair with the internal grease slick.  Hopefully, no one snapped a cell phone photo.  Her husband was mortified.

So, I return to my mother’s advice.  “Never do anything that you don’t want ending up on the front page of the News and Disturber” – or the TV news – or Facebook – or Twitter. 

Nurses Fight Back and Win

I’ve represented nurses for over 35 years.  I’ve listened as hundreds of nurses describe their struggles with administrators determined to cut corners to make money.  They tell of staffing problems that make it impossible for them to provide the care their patients desperately need.  When the nurse complains too loudly, she finds herself fired or reported to the Nursing Board on trumped up charges.  As North Carolina law provides little recourse for mistreated employees, nurses often leave the profession for better jobs.  But two nurses recently made headlines.  They fought back and made quite a lot of money doing it.

Vanessa Absher and Lynda Mitchell worked for several years as nurses at the Momence Meadows Nursing Center in Illinois.  Medicare and Medicaid covered the care for most of the patients at the 130 bed skilled nursing facility.  The nurses complained of dismal conditions at the home.  Often, patients did not receive medication, food, or water.  They lay for days in their own excrement.  They developed bed sores, scabies infections, and blood poisoning.  Management ordered staff to falsify patient records, medication charts, and staffing records to hide patient injuries and deaths.  When the nurses objected, the owner ordered them to “shut your mouth.”  Management finally fired one of the nurses.  The other one quit.  Neither gave up.

The nurses filed an action under the federal and state False Claims Acts.  They alleged that Momence had fraudulently billed the government for care that it did not provide to the patients.  They also claimed that Momence fired them for blowing the whistle on the draconian conditions at the home. 

As Momence would soon learn, the law imposes extreme penalties for filing fraudulent claims for government money.  Assume the defendant files a false Medicare claim for $25.00.  Initially, the penalty is three times the amount of the false claim.  Now, the defendant has to reimburse the government $75.00.  But, an additional penalty of up to $10,000 can be added for each false claim. 

Based on these laws, the jury returned a verdict of over $28 million against Momence.  Because whistleblowers are entitled to a share of the damages awarded, the nurses’ share could total more than $7 million, plus court costs and attorney fees.  This is in addition to the $400,000 that the jury awarded the nurses in connection with their own claims against the defendant.

It took almost nine years for the nurses to get a jury verdict in the Momence case.  Appeals can tie up the courts for several years to come.  And the nurses may have a bit of trouble collecting their money.  Courts earlier ruled that Momence’s insurance company was not liable for the damages.  Accordingly, the defendants’ assets are the sole source of funds for the verdict.  Fortunately, the defendants can’t discharge the debt in bankruptcy court.  And the government will help the nurses collect the damages.  Even the Mafia has paid up when the government demands its money.

North Carolina has its own False Claims Act.  It provides for treble damages and penalties of up to $11,000 for each false claim.  Whistleblowers can receive up to 30% of damages collected.  In addition, any whistleblower who suffers retaliation from his employer-defendant is entitled to reinstatement and twice the lost back pay.  Again, the employee is entitled to attorney fees and court costs.

The state and federal False Claims Acts give nurses and other health care workers powerful weapons to use in fighting back against employers who commit health care fraud – even in North Carolina.

When It's Your Turn To Wear A White Rose

       I was in high school when my best friend’s father died.  “You have to go see her,” folks told me.  But I was afraid that  I wouldn’t know what to say to her.  I might even say something wrong that would make matters worse.  But others insisted and I went.  I tried to comfort her, but I knew that no one could take away her pain.  It was also clear that she couldn’t really focus on anything I said.  It was just important that I was there.

      I distinctly remember the day my mother received the phone call telling her that her mother had died.  I had never seen Mother so distraught.  As child raised in the Christian faith, I couldn’t understand why she would be so upset about her mother finally getting to go to heaven.  Only when the following Thanksgiving and Christmas came and went without Grandma being there, did I finally “get it.”  Grandma might be in a better place, but where ever that was, it wasn’t with us.

      I also remember the first Mother’s Day after Grandmother died.  As we got ready for church that Sunday, mother gave each of us our traditional red rose buds to pin on our Sunday outfits.  Then, she pinned a white rose onto her dress.  She explained to me that when your mother is dead, you can no longer wear a red rose.  From that day forward, you must always wear a white rose on Mother’s Day.  I remember checking my red rose most of that Sunday to be sure it was still safely pinned to my jacket.

      For the past many years, Mother suffered terribly from the ravages of dementia.  She rarely knew who I was.  When I showed up with food, she thought I was a caterer.  The day I gave her a pedicure, she thought I was a beautician and instructed Dad to give me a good tip.  When I played “Danny Boy” on the harp for her, her face lit up with joy.  Of all the hymns and songs I had played for her that day, “Danny Boy” was the only one she  recognized.  Although she no longer knew me, I took comfort in the fact that she always knew my father.  She never forgot her soul mate.

      Then her heart gave out.  The phone rang and, checking the caller ID, I realized that “the Home” was calling.  As Mom’s condition had stabilized over the past few months, I figured that there must be an insurance problem or some other trivial concern to be addressed.  I was not prepared for the nurse to tell me that my mother had died. 

      A powerful neutron bomb went off in my soul.  I instinctively realized that “my ship was taking on water”, but for several weeks, I had no idea how much water was flooding the decks.  After all, she had been sick and in pain for a long time.  Surely it was a relief that she was no longer suffering.  These and other comments by well-meaning folks who tried to console me, were logical but totally irrelevant.

      The extent of the damage came home on Mother’s Day.  Family members called all through the day to be sure I was all right and I assured each one that everything was fine.  But it wasn’t.  As I tried to grasp hold of some sane thought that day, my mind kept going back to white roses.  It would be my first Mother’s Day without my mother.  It was my turn to wear a white rose. 

      I had not planned to go to church that Sunday.  I had nowhere to go wearing a white rose and, as far as I knew, there was nowhere on Sunday to buy a white rose.  But the idea of the white rose hounded me the entire day.  As we no longer have “blue laws” requiring shops to be closed on Sundays, Michael’s Arts and Crafts Store was open hoping to make a few secular dollars on this otherwise sacred day.

      So, late Sunday afternoon, at Michael’s, I purchased my white rose and took it home.  Unlike my mother’s rose, mine doesn’t smell very good.  But unlike my mother’s, mine will be around for as long as I want it.

      A friend once told me that when her mother died, she realized that the world was divided into two kinds of people:  those who had lost a parent and those who had not.  I know now what she meant. 

      After my mother’s death, my father complained to me about the things people were saying to him in an effort to make him feel better.  He didn’t want to hear that Mother was “in a better place.”  Or that she had “gone to be with the Lord.”  I asked him what he did want to hear. 

      “Just that they love me and that they’re sorry,” he replied. 

      I would have to agree.  Like my Dad, those were the two things I most wanted to hear.  So, the next time a friend “loses” a loved one and you are feeling awkward about what to say, you might try Dad’s advice.  Of course, if you are one of those folks who have “lost” someone you love, you already know that.

      Thanks for reading.