JCOHS Lawyers and Attorneys

The afterward commodity lists some simple, advisory tips that will advice you accept a added acceptable acquaintance with Public Health Insurance Option.

 

The advice about Public Health Insurance Option presented actuality will do one of two things: either it will reinforce what you apperceive about Bloom Allowance Advantage or it will advise you article new. Both are acceptable outcomes.

President Barack Obama is insisting that bloom affliction “reform” accommodate an allowance plan operated by the federal government, claiming that this “public option” is all-important to accommodate antagonism adjoin the clandestine insurers. Senate Majority Leader Harry Reid (D-NV) has said that the government plan would comedy a role like that of the U.S. Post Office, which he allegedly believes is befitting Federal Express and UPS honest and efficient.[1]

This backward address reflects a mindset ashore in the 1930s, anticipation its allegorical political aesthetics from the joy and abatement acquainted by John Steinbeck’s Joads back they begin apartment in a government-run affected on their clearing from Oklahoma to California. It does not fit avant-garde America.

Advocates of the government allowance plan assure us that it would attempt with clandestine insurers on a akin arena field. In reality, the “competition” would be rigged, with the government plan adequate a cardinal of advantages.

As a result, the government plan would acceptable abduction a ample allotment of the allowance market, marginalizing and abrasive clandestine insurance. For example, the Lewin Group estimates that the America’s Affordable Bloom Choices Act,[2] the bloom ameliorate bill currently beneath application in the House of Representatives, would abate the cardinal of Americans with clandestine allowance by 83.4 actor and that the fresh accessible plan would awning 103.4 actor people.[3] Coupled with the federal authoritative arrangement that the legislation would appoint on the absolute clandestine plans, this would acutely by itself aggregate a government takeover of bloom care.

Even worse, the federal takeover would accelerate. The clandestine plans’ almost baby bazaar allotment would acceptable cede them added big-ticket and advance to a afterlife circling in which clandestine allowance would serve an ever-decreasing allotment of the market.

In short, the federal allowance plan is a behemothic footfall adjoin the single-payer arrangement that the President has accepted that he prefers. The distinct payer would be the federal government. This would actualize a nationalized bloom affliction arrangement abundant like those in Europe and Canada.

Tilting the Arena Field

The President and his allies in Congress accept attempted to abate fears about how the government plan would affect Americans’ clandestine allowance arrangement by adage that it would alone accommodate them an added best and would attempt on the aforementioned agreement as the clandestine affairs offered through the fresh Public Health Insurance Exchange. To that end, the House bill alike contains a area advantaged “Ensuring a Akin Arena Field.”[4]

However, the absolute agreement of Area 221 do not alive up to the title. Clandestine insurers and the government plan would not attempt on a akin arena field. The accouterment that is accustomed as “ensuring” a akin arena acreage fails to do so in three respects.

Tilt #1: Accoutrement for leveling the arena acreage are bound to the requirements of the bill.

Most important, the ambit of Area 221 is limited. It requires the “public bloom allowance advantage [to] accede with requirements that are applicative under” Appellation II of the bill to added insurance affairs offered through the health insurance Exchange, including those that are accompanying to customer protections, benefits, cost-sharing, notices, and provider networks.[5]

Disregarding the grammatical brain-teaser of how an “option” can do anything, Area 221 makes the government plan accountable alone to the requirements that are imposed by Appellation II. It does not appoint on the government plan the ample array of added federal and accompaniment requirements with which clandestine insurers allegation comply, such as taxes, antitrust laws, and licensing requirements. Undoubtedly, added requirements would bound become credible if the legislation were implemented.

Depending on their tax status, clandestine insurers allegation pay federal and accompaniment taxes, including exceptional taxes, acreage taxes, and assets taxes. The government allowance plan, which would be run by the U.S. Department of Bloom and Human Casework (HHS), would not pay these taxes, and Area 221 does not change this. Nor would the government plan be accountable to the federal and accompaniment antitrust laws that adapt the operations of clandestine insurers.

Moreover, the bill is cryptic on whether the government plan would be appropriate to accommodated accompaniment licensing standards and admission accompaniment licenses. Area 204 contains a accepted affirmation that a plan alms allowance through the barter allegation be accountant beneath accompaniment law for anniversary accompaniment in which it offers coverage,[6] yet accompaniment laws do not administer to the federal government unless federal law provides that they do. The accepted accent in Area 204 and Area 221 may not be abundantly absolute to crave the government plan to admission accompaniment allowance licenses. If not, the government plan would abstain accompaniment solvency and added requirements that clandestine affairs allegation meet.

Similarly, the accent is cryptic on whether the government plan allegation accommodate specific allowances and accommodate providers as appropriate by accompaniment laws. Area 203 specifies that such accompaniment mandates “shall abide to apply” to affairs offered through the exchange,[7] but it is cryptic whether this is a “requirement” aural the acceptation of Area 221 that would administer to the government plan. If not, the government plan would abstain the costs that clandestine insurers acquire in acknowledging with the added account requirements imposed by the states.

Whether these accepted accoutrement would crave the government plan to accede with accompaniment law is complicated by Area 225, which absolutely makes accompaniment law applicative to the government plan’s alternative of providers. It specifies that the government plan can accommodate alone providers that are accountant or certified by the state. The absence of analogously absolute accoutrement in added sections would suggest–according to the rules of accustomed construction–that the government plan would not be accountable to accompaniment laws in added aspects of its operation.

The government plan would be cloistral from the aerial costs of abomination action that clandestine affairs face. Unless exempted by the Agent Retirement Assets Security Act as an agent allowances plan, a clandestine insurer can be sued for a array of torts, including accomplishments for consequential and non-economic amercement for afterlife and abrasion constant from a blameworthy abnegation of coverage. Yet the government plan, as an arm of the federal government, would apparently be allowed from abomination liability. The federal government can be sued beneath the Federal Abomination Claims Act (FTCA), but not for arbitrary accomplishments of its agents, and a advantage accommodation would apparently authorize as such a arbitrary act.

Even if clothing could be brought adjoin the government plan beneath the FTCA, it could not be heard in a accompaniment cloister or afore a jury, and the government plan would not be accountable for castigating damages. Furthermore, the FTCA imposes austere caps on attorneys’ fees, which decidedly reduces bread-and-butter incentives to activity up apparel adjoin the government, which is absolutely not the case in action adjoin clandestine parties.[8]

Tilt #2: Alike with the requirements imposed by the bill, the acreage is not level.

Becausethe bill does not spell out the ambit of Area 221(b)(2), it is cryptic absolutely which “requirements…are applicative under” Appellation II.

Title II requires affairs to abide bids to the anew created Bloom Choices Commissioner, who would analysis the capability of their provider networks and apparently would accomplish demands on amount and account afore accepting a bid and entering into a contract.[9] Provider networks are briefly mentioned in Area 221 as one of the applicative requirements,[10] but the commissioner’s obligation to admission into affairs with affairs and the action for accomplishing so are not mentioned. The bill is cryptic on whether these requirements are applicative beneath Appellation II and accordingly whether Area 221 gives the abettor the ascendancy to crave bids from the government plan and to accommodate affairs with it.

Even if the bill does accord the abettor this authority, the anatomy of Appellation II makes it cryptic what requirements the abettor could appoint on the government plan. The abettor is appropriate to advance standards on assorted aspects of plan operations in adjustment to backpack out the requirements of Appellation I. Alike if the government plan is accepted to accommodate with the abettor as added affairs do, it is cryptic whether a affirmation beneath Appellation I that is embodied in the commissioner’s standards is a affirmation applicative beneath Appellation II with which the government plan allegation comply.[11]

The bill does not absolutely crave the abettor to amusement the government plan the aforementioned as it treats the added plans. In the absence of such bright direction, it is absurd that the government plan would face the aforementioned behest and acknowledged action (which, in essence, will be the foundation of a cher authoritative regime) that the clandestine affairs face.

In fact, admitting the accent of Area 221(b)(2), added accent in the bill leaves accessible to estimation whether the government plan allegation accommodated any of the requirements of Appellation II or Appellation I. Area 100 states that the HHS Secretary, in affiliation with the government plan, “shall be advised as” alms an exchange-participating bloom allowances plan and that “the appellation ‘qualified bloom allowances plan’ agency a bloom allowances plan that meets the requirements for such a plan beneath appellation I and includes the accessible bloom allowance option.”[12]

This accent could be apprehend as acute clandestine affairs to accommodated assertive requirements beneath Appellation I but not acute the government to do so. Because “treated as” and “includes” are acclimated to call the government plan’s status, it adeptness be argued that the government plan is not appropriate to accommodated those requirements through the operation of Appellation II or alike those requirements included in Appellation II, admitting Area 221(b)(2). This accent could be apprehend as giving the government plan a chargeless canyon to qualification.

In accession to creating the apparition of a akin arena field, Area 221 is drafted craftily in added ways. It introduces the cryptic requirement, discussed above, that the government plan accede with the accoutrement imposed by Appellation II with the condoning byword “consistent with this explanation [Subtitle B].” Importantly, Area 221 additionally states that HHS’s “primary responsibility” in creating the government plan is to actualize “a bargain allowance plan.”[13]

The accomplishment that the akin arena acreage allegation be constant with the explanation could activate the Secretary to affirmation exemptions from cher requirements of the bill on the area that the exemptions are bare to backpack out the authorization for a bargain plan. These ambiguities could additionally abutment claims that the government plan is not appropriate to abide bids, accept its premiums accustomed by the commissioner, admission into a arrangement with the commissioner, abide to accompaniment authorization laws, or admission accompaniment licenses.

The bill additionally seems to accord the government plan the adeptness to admission proprietary advice about aggressive clandestine plans. It confers on the Bloom Choices Abettor bearding and around absolved ascendancy to aggregate abstracts from plans, including the government plan. The abettor is appropriate to aggregate the abstracts bare for accustomed out his or her duties,[14] and affairs are appropriate to address “such advice as the Abettor may specify.”[15] The advice calm could accommodate the bloom cachet of anniversary actuality covered by allowance affairs and which casework were acquired from which providers. It could additionally accommodate advice on the agreement of providers’ accord in plans, how abundant anniversary provider is paid by the plan, the profits becoming by a plan, and added advice accordant to plan operations.

Disturbingly, the abettor is accustomed to “share” this advice with the HHS Secretary, the abettor of the government plan, after any brake on the Secretary’s use of the information.[16] Thus, the government plan may admission all-encompassing abstracts about the operations of aggressive clandestine plans, but clandestine affairs will not accept admission to this advice about either the government plan or anniversary other.[17]

Tilt #3: A government-operated plan has added inherent advantages.

The government plan would accept a cardinal of added advantages. It would be marketed with the imprimatur of the federal government, and that cachet itself would be actuating to abounding abeyant enrollees. In addition, the government could use its advancing contacts with the citizenry to bazaar its allowance plan. Nothing in the bill would absolutely prohibit the government from including promotional abstracts in mailings or as an cyberbanking bulletin accompanying automated drop of government benefits, such as Social Security checks and tax refunds.

The bill requires the Bloom Choices Abettor to set “uniform business standards” for all allowance affairs affairs through the exchange.[18] Whether these standards would administer to the government plan is unclear. Nor is it bright whether the government plan would be accountable to the aforementioned information-disclosure requirements as clandestine plans.[19] These accoutrement are independent in Appellation I of the bill, and, as discussed, Area 221 absolutely imposes alone the Appellation II requirements on the government plan.

The government plan would additionally accept the advantage of accepting law-making ascendancy abaft it. The bill would accomplish agreement ante for doctors and hospitals beneath Medicare applicative to the government plan.[20] These are unilaterally imposed by the government–a adeptness that no clandestine plan would have–and are lower than what clandestine affairs accept been able to accommodate in the market. Alike if this is afflicted to crave the government plan to “negotiate” agreement rates, its beyond admeasurement and ascendancy would accord it acceding advantages that no clandestine plan could match.

In any event, neither of these agreement methodologies would acceptable be the aftermost word. The bill gives the government plan absolute ascendancy to authorize agreement ante for providers unilaterally as continued as they are “innovative.”[21]

Finally, in aggressive with clandestine plans, the government plan will get pleasure one cardinal advantage: Because the government can force the aborigine to accomplish up any shortfalls, the government plan can allegation premiums that do not awning its costs. The bill requires the government plan to allegation premiums as all-important to accommodated its costs, additional a allowance for contingencies.[22] However, political realities and the burden to accommodate “affordable” allowance could aftereffect in this actuality abandoned or fudged.

How costs are affected will assuredly be circuitous and controversial. The government plan could allegation beneath than its costs because the U.S. taxpayer–initially, lenders to the federal government–could be tapped. Clandestine affairs do not accept the adeptness to lower prices beneath amount and tax the aborigine to accomplish up the difference. The constant aborigine subsidies to the government plan could calmly accomplish Fannie Mae and Freddie Mac attending like accurate and acclimatized actors in the mortgage market.[23] Furthermore, clashing the proposed government plan, they were not alike government agencies back they were bailed out.

Conclusion

In a cardinal of ways, the America’s Affordable Bloom Choices Act would abort to “ensur[e] a akin arena field.” It is cryptic whether the government plan would be accountable to a cardinal of requirements that the clandestine affairs would be appropriate to meet. It would arise to accord the HHS Secretary and the Bloom Choices Abettor the acumen to adjudge these ambiguities in favor of the government plan and to acquisition that assorted requirements do not administer to the government plan because of its cardinal mission to action a bargain plan. However, alike after including these abeyant advantages,the government plan would acutely be chargeless of a cardinal of requirements and costs that clandestine affairs face.[24]

Happy allocution of creating a akin arena acreage amid the government allowance plan and clandestine affairs should be beheld with able skepticism and alike disbelief. The government plan would be heavily favored, arch to the marginalization of the clandestine allowance bazaar and the conception of a de facto single-payer system–a nationalized bloom system.

John S. Hoff is a Trustee and founding Board Member of the Galen Institute. He served as a Deputy Assistant Secretary for Planning and Evaluation in the U.S. Department of Bloom and Human Casework from 2001 to 2005.

 

There’s a lot to accept about Public Health Insurance Option. We were able to accommodate you with some of the facts above, but there is still affluence added to address about in consecutive articles.



By: yinlz2002

About the Author:

Assisted living facilities are rapidly becoming the nursing homes of the future. According to the National Center for Assisted Living, there are over 36,000 licensed assisted living facilities nationwide with an estimated 1 million residents.[1] However, because there is no common definition for assisted living facilities, this number may not adequately reflect the prevalence of these facilities. In fact, in 2002 the National Conference of State Legislatures hailed the assisted living market as one of the fastest growing long-term care options for senior citizens; the number of seniors in assisted living facilities receiving Medicaid benefits has grown nearly 50% over the past few years.[2]

These facilities tend to aggressively market and recruit residents, many times promising staffing levels or services that, in reality, are not available.[3] In an attempt to compete with nursing homes, assisted living facilities are accepting patients with higher acuity. Most major chains promote special Alzheimer’s Disease Units, and are accepting patients with significant cognitive impairment. The reality is that many of these facilities have staffing that is inferior to the staffing levels present in nursing homes and simply cannot meet the needs of the higher acuity residents. The end result is that residents throughout the county are suffering from serious injuries due to the neglect and abuse that is taking place in these facilities.

A. Assisted Living v. Nursing Home Care

Assist living abuse and neglect cases and nursing home abuse and neglect cases are similar in some respects, i.e., both involve supervision and care of the elderly, but evaluating the assisted living case involves a greater perception of the differences in the two types of facilities.

1. Standards of Care. The litigation of assisted living abuse and neglect cases, like the litigation of nursing home abuse and neglect cases, can be an effective tool in forcing the industry to comply with proper standards. However, since most states have weak regulations, it often becomes difficult to establish the legal standard of care for a particular facility. Many times a plaintiff may have to fall back on basic community practice nursing standards that will apply when an assisted living facility contracts to provide more than just room and board.

Nursing homes are highly regulated and must comply with the regulations set forth in the Omnibus Budget Reconciliation Act (“OBRA”) of 1987[4] (otherwise known as the federal Nursing Home Reform Act) which set minimum standards of care for long term care facilities that receive federal funding. Unlike nursing homes, assisted living facilities are not regulated by the federal government, and the state regulations that do exist are inconsistent and, for the most part, not aggressively enforced.

When considering the basis for liability, one must consider whether the assisted living facility breached regulatory or community practice standards in admitting the resident whose needs may have been too great to be met by the assisted living facility. Many assisted living facilities, especially those with “Specialized Alzheimer’s Units” are accepting residents with advanced dementia who would normally be admitted to a nursing home, and possibly even a skilled wing of the nursing home. In such cases, it would be advisable to obtain an expert who will evaluate the resident’s condition and the relevant admission criteria. Such an evaluation will likely be beyond the abilities of a lay person, although many admissions decisions in assisted living facilities are being made by non-medical personnel.

Almost all states prescribe some limitation on who can be admitted into an assisted living facility. For example, Virginia regulations prohibit adult care facilities from admitting or retaining patients with a variety of conditions, including ventilator dependency, dermal ulcers stages III and IV, those requiring intravenous therapy or injections directly into the vein, nasogastric tubes, and those who require continuous licensed nursing care. 22 VA. ADMIN. CODE § 40-71-150 (West 2003). Other states contain similar limitations with prohibitions aimed at excluding patients with a demonstrated need for skilled or specialized care.[5] Assisted living facilities do not provide skilled care; consequently, they are uniformly required to screen patients to determine the level of care needed and reject patients whose needs exceed their capacity. State regulation of assisted living facilities is lax and, for the most part, ineffective. Only a few facilities in the Commonwealth of Virginia have been denied a license for regulatory noncompliance. It is the opinion of this author that weak regulatory enforcement is in part due to inadequate regulations that do not adequately specify industry standards.

2. Experts. To litigate a nursing home abuse and neglect case it almost always requires the use of medical experts who will define the standard of care and address breaches in the standards. As assisted living facilities are generally not considered health care providers, one may question whether an expert is necessary. This will obviously depend on the facts of your case. But in almost every case, at the very least, you will require an expert to establish causation and damages. Since many times injuries in assisted living facilities result in the patient requiring long term care in a nursing home, you may also want to consider obtaining a life care plan from a qualified expert.

Once you have obtained records, you should have the case reviewed by a nursing expert you can rely upon. Unlike nursing homes where there DON and Administrators are RNs, many of the nurses who work in the assisted living arena are LPNs and lack the background that you may be looking for in an expert. Finding talented nurse experts who are actively involved in assisted living care is a challenging task. This author has used the ATLA list serve, and random calling of facilities to locate qualified experts.

B. Evaluating the Assisted Living Case

1. Facility Records. The first step in assessing liability against an assisted living facility will be to obtain the records from the facility and the contract that was signed. The contract will likely define the duties undertaken by the facility. Most assisted living facilities have various levels of service. Level one might be the basic service which would include only room, board, meals and activities. Level four, or the highest level of service, might include resident assessment, care or service planning, medication administration, and dementia and nursing care. The standards applied by these facilities could be analogized to standards of care applied by a nursing home that was not providing skilled care.

2. Freedom of Information Act. In addition to obtaining the records, you will need to do a Freedom of Information Act request. This will help you identify the corporate entity that actually owns and operates the facility and may also allow you to see surveys or inspections that were done on this facility. The license should always be available, and may include information about the scope of services that the defendant facility is authorized to provide. Do not expect the surveys or inspection reports to contain the wealth of information that are available for nursing homes. Many times surveys are performed by the local Department of Social Services and do not include assessments of whether or not these facilities are complying with regulatory standards of care.

3. Case Review. The following are some factors to consider early on in deciding whether or not to prosecute an assisted living facility for negligence or abuse:

a. The nature of the resident’s condition upon admission. If she was mentally competent and independent with acts of daily living, you will confront significant problems with contributory negligence and comparative fault defenses.

b. The nature of the contract and duties assumed by the facility. If they only agreed to provide room, board, and meals, the defense will argue their duties are analogous to that of a landlord in an apartment building.

c. The quality of the relationship between the personal representative and the victim. If the victim is deceased, this may take on a greater importance as the nature of that relationship may define your damages under the applicable wrongful death act.

d. Whether the family members make good fact witnesses, appear genuinely outraged by the facility’s conduct, and complained and/or removed their loved one from the facility.

e. Whether the facility had serious staffing shortages or a pattern of neglecting their residents.

f. Did the victim suffer a significant injury in the facility that adversely affected the quality of her life for the future, or caused her death?

g. Do you have strong witnesses and powerful exhibits? Do you have an insider who is willing to blow the whistle on rampant staffing shortages? Do you have color photos of that pressure?

h. Do you have significant economic specials that are not encumbered by a Medicare or Medicaid lien?

i. Is the defendant a charitable organization, religious affiliate, or part of a large assisted living chain?

C. Theories of Liability

With weaker regulation, variety in industry standards, and market competition, it is not surprising that the U.S. General Accounting Administration, in 1999, identified problems in assisted living facilities that included inadequate or insufficient resident care, insufficient trained staff, improper medication administration, and not following admission and discharge policies required by state regulation. A 2000 study by the U.S. Department of Health and Human services found that a high percentage of the staff at assisted living facilities were not knowledgeable about the normal aging process and at least 60% of the staff did not know how to properly manage difficult behavior among assisted living residents.

Liability: Improper Admission. Many times, liability based upon an improper admission results when someone is admitted into a facility that is not locked down or enclosed. Many residents with dementia have a tendency to wander and they should simply not be admitted into facilities that are not locked down or do not have appropriate wander guard systems and/or alarms on the doors.

In Selvin v. DMC Regency Residence, Ltd., 807 So. 2d 676 (Fla. Dist. Ct. App. 4th Dist. 2001) a resident of an assisted living facility wandered off and was found dead in a nearby canal. Plaintiff’s complaint alleged two different theories of liability: the first was a statutory wrongful death action and the second was based on alleged violations of statutes relating to assisted living facilities. Plaintiff alleged that the facility had a common law and statutory duty to supply at least the level of services and care that all licensed assisted living facilities generally furnish elderly patients of the plaintiff’s decedent’s classification and condition. At the time of trial, plaintiff sought to introduce expert testimony about specific safety precautions that were the industry standard and further sought to show that the facility should have built a fence to prevent elders from wandering near the dangerous area of the canal. The trial court precluded this testimony, finding that the facility had no legal duty to fence off the canal to the general public. The Appellate Court reversed, finding that the facility undertook to furnish certain services of care and security which created such a duty of protection. The Appellate Court also held it was an error to exclude testimony regarding industry standards of what could have been done to protect these impaired residents from falling into the canal.

1. Liability: Falls. Another common area of liability in assisted living facilities involves falls. Expert testimony may not be required in such cases. See, Walker v. Southeast Alabama Med. Ctr., 545 So. 2d 769 (Ala. 1989).[6] However, fall assessment and fall prevention planning is usually done by a nurse or other medical provider and it may be advisable to have an expert address this issue. In large part, the need for an expert will be determined by the facts of your particular fall. If the staff simply dropped the resident during a transfer, an expert may not be necessary. However, if the resident came in to the facility with multiple risk factors for falling[7] which were never assessed or care planned and he fell one day while wandering the hallway, you should retain an expert to discuss how the standard of care for fall prevention was breached. To establish causation, she will have to testify that if appropriate standards were followed, it would have, more likely than not, prevented the particular fall which caused injury to plaintiff. As this is an area of first impression in many jurisdictions, it is advisable to educate the court with a trial memorandum addressing experts and other issues prior to trial.

D. Other Theories of Liability

Attorneys who prosecute assisted living facilities have an opportunity to be far more creative in the prosecution of these claims, given the broad range of theories that are available. Below are some typical theories that can be advanced against an assisted living facility.

1. Common Law Negligence. This is probably the most common theory of liability advanced in assisted living cases. Make sure you do not plead breaches in medical or nursing standards of care, or you may face the argument that you have pled a traditional malpractice case. You can plead the breach of regulatory standards and/or industry standards which proximately caused injury to your client. As assisted living facilities are not health care providers, they should not be subject to caps or other discovery limitations (i.e., quality assurance privileges) that apply to traditional health care providers.

2. Violations of the Consumer Protection Act. Make sure to inquire of your client what representations were made as an inducement to enter the facility. Obtain the brochures that were handed out by the marketing representative. Most consumer protection statutes provide relief for misrepresentations which were made as an inducement to enter into the consumer transaction. Case law has allowed such theories to be advanced even against health care providers, so there should be no reason that this theory could not be advanced against an assisted living facility.[8] The advantage is that many states’ consumer statutes allow for the recovery of costs and attorney’s fees.

3. Adult Protection Act. Most states have statutes that have been specifically enacted to protect the rights of elder Americans.[9] Some states, like Tennessee, specifically exempt health care providers from the application of such statutes.[10] As assisted living facilities are not health care providers, these exemptions should not apply.

4. Breach of Contract. Almost all assisted living facilities will make their residents sign a contract as a condition of admission. Scrutinize the contract carefully, as it may contain waivers of liability or waivers of the resident’s right to a jury trial. Such waivers can be asserted irrespective of whether one pleads a separate breach of contract claim. Under the laws of most states, contract damages will be limited to foreseeable economic damages, so it would be disadvantageous to plead this as your only theory of liability. However, the contract may have required that certain services be delivered to the resident (i.e., activities, assistance with acts of daily living, 24 hour supervision) which were not, in fact, provided. The resident may have suffered no physical injury from the failure to deliver such services and the defense will argue that such evidence should be excluded at the time of trial. With the contract theory properly pled, plaintiff can argue that such evidence is admissible to prove contract damages and recover monies for services which were not provided.

Be wary that the defense may argue that since plaintiff failed to quantify the extent of services that were not provided, any award of contract damages would be based on speculation. As such, you should make an attempt to have your client provide a good faith estimate in percentage terms as to what services were not provided. However, if you have a strong negligence claim based on a discreet event (i.e., a fall causing a hip fracture) you may not want to confuse the jury with a lot of collateral facts and issues that may not have a strong bearing on your damages.

5. Negligent Hiring and/or Retention. Consider this claim where you have intentional torts committed by an employee and some evidence that the defendants knew or should have known that this was a troubled employee. Many assisted living facilities don’t adequately screen their employees. This evidence may not be revealed until the discovery process begins and it is essential that you obtain the employee’s personnel file early on in litigation so you can amend your complaint if necessary. Depending on the tolling provisions of your individual claim, the cause of action may still relate back because it arguably arises out of the same set of operative facts. It is also a good idea to sue the employee individually. The same defense firm may represent both the employee and corporation, making it impossible to argue that the employee was not operating within the scope of his employment.

6. Wrongful Death. In any case where there is evidence that the facility’s negligence caused or contributed to the resident’s death, a separate wrongful death claim should be asserted. If there is any good faith basis to conclude that the negligence contributed to plaintiff’s death, you should plead both survivorship and wrongful death claims. Any long term care case has greater value if you can argue that defendant’s neglect caused plaintiff’s death. You may also have separate claims for injury that in no way contributed to the resident’s death. Such claims should be pled with your survivorship claims. Research the law in your jurisdiction to determine what forms of damages are recoverable under a wrongful death statute. If you’re in one of those unfortunate jurisdictions that allow only economic damages, you may not want to plead a wrongful death claim.

7. Punitive Damages. As the nature of economic damages in an assisted living case may not be impressive, and as your client will likely have suffered from several preexisting conditions that may weaken your compensatory damage claim, you should, whenever possible, plead punitive damages. Successfully pleading a punitive damage claim will also provide you with the basis for exploring defendant’s conduct with respect to other residents who were neglected in substantially similar ways to that of your client. Cases from around the country have upheld such punitive damage claims against nursing homes, and there is no reason that such precedent would not apply equally to assisted living facilities. [11]

8. Americans with Disabilities Act/Fair Housing Act. The Fair Housing Amendments Act of 1988 (FAA)[12] prohibits discrimination in virtually all housing and related activities, whether such conduct takes place in the private or public sector. This law is complemented by the Americans with Disabilities Act,[13] which, while it specifically does not include entities covered by the FAA, applies to non-housing functions of a facility, such as common areas, meeting rooms, cafeterias, adult day care, or long term care under Title II (state and local) and Title III (public accommodations) programs.

E. Selected Case Results

A survey of reported cases reveals very few published cases throughout the country. This author has litigated fall cases, negligent admission resulting in pressure sores cases, and one case involving an unfortunate resident who caught fire in the recreation room. The manner in which he was ignited was never explained by the facility.

In one assisted living case taken to verdict in Virginia, plaintiff had fallen during the evening and was placed back in bed (with a hip fracture) by a nurse aid who denied the fall ever happened. Plaintiff was alive at the time the case went to verdict and required ongoing nursing care because of her injuries. The jury rendered a verdict of $1.5 million in compensatory damages.

A brief survey of published assisted living cases results and verdicts across the U.S., reveals the following:

1. Dick v. Bixby Knowles Towers; No. NC 021 371, verdict date 04/15/1998. Plaintiff was walking through the dining room when she felt hot coffee spill onto her neck, back and shoulder. She turned away from the coffee and stumbled and fell. One employee acknowledged holding two pots of coffee at the time of injury, but denied spilling coffee on the Plaintiff. Plaintiff suffered a fractured distal femur and first and second degree burns. Verdict was $378,990, with medical expenses totaling $128,000.

2. Wiggins v. St. John’s Terrace Homes, Inc. Docket No. 96-2705-CA; FJVR reference No. 98:7-55 (July 1998) Plaintiff, an assisted living resident, was seated at a dining table when a coffee pot burst open, pouring scalding coffee down Plaintiff’s leg. Verdict of $223,893.

3. Weiland, as Personal Representative of Louise Debenack, v. Alexandra & Co. of Boca Raton, Inc., d/b/a/ The Colonnade at Haverhill, Docket NO. CL 99-00066 AE; FJVR reference No. 01:6-54 Pub.(June 2001). Plaintiff found dead after she developed a UTI that became septic. Upon admission to hospital, plaintiff had a large hematoma which was not explained by the defendant. Settlement for plaintiff for $1 million.

4. Estate of John Doe v. Anonymous Assisted Living Facility. (Reported from the Michigan Trial Reporter, JAS Publication) Settlement of $1,350,000 for an elderly assisted living resident who died from burn injuries sustained while showering. Plaintiff’s theory of negligence alleged that defendant was negligent in not having proper temperature controlling devices for their residents.

5. Davis v. Premium Health Care, Inc. Docket No. 98-20263, Reference No. 01:8-12 (August 2001). Settlement of $300,000 for decedent who developed multiple pressures sores (including a stage IV) while in the facility.

6. Casaletto v. Helen Homes Corp., d/b/a The Palace Gardens, Docket NO.: 01-12468 BA 20; FJVR Ference No. 02:9-44 (Miami, September 2002) Defense verdict involving an 86 year old male who was admitted to an assisted living facility in May and suffered a fall in August of the same year. Plaintiff alleged improper admission and failure to properly supervise. Defendant contended that the decedent was a proper admission and that the level of supervision was appropriate in he ambulated independently. Both parties relied on experts in the area of assisted living administration.

7. Pollock v. CCC Investments I. LLC d/b/a Tiffany House by Marriot, Docket No. 01-16746, Ref. No. 05:3-9 (Florida 2005). Defense verdict involving a resident who was murdered by another resident. Defendant’s argued they had no notice of the other resident’s potential violent conduct. The jury found there was no negligence on the part of defendants that caused plaintiff’s death. They also found there was no violation of the assisted living facility’s resident’s rights under Florida statutory law. Defendant’s highest offer was $750,000 with lowest demand at $9,900,000.

II. Conclusion

As this is a new and evolving area of the law, attorneys who litigate these cases should strive to establish favorable precedents for those who follow. If the recent explosion in nursing home litigation is any indication, assisted living facilities could be the nursing homes of the future. As with nursing home litigation, the civil prosecution of these cases provides an important safeguard in protecting the rights of our elderly and assuring that proper standards are followed in the industry.

[1] Mollica, Robert L. State Assisted Living Policy: 2000. Portland: National Academy for State Health Policy, 2000, Executive Summary.

[2] Issue Brief, Health Policy Tracking Service, National Conference of State Legislatures, October 1, 2002.

[3] Based on a study done by AARP that randomly shopped some 80 assisted living facilities, a pattern of discrepancies was found between what representations were made in the marketing materials versus promises made in the admission’s contract. Two previous surveys that compared marketing materials and assisted living contracts, one by the American Bar Association’s Commission on Legal Problems of the Elderly Consumer Reports, and the other by the U.S. General Accounting Office, revealed similar problems. Adrienne Oleck & Bruce Vignery, Nurture or Neglect? Challenging Deceptive Practices in Assisted Living Facilities, CONSUMER ADVOC., Jan. 2001, 7(1).

[4] See, 42 C.F.R. 483.10 et seq.

[5] Montana law prohibits assisted living facilities from admitting patients who, inter alia, are non-ambulatory, in need of physical/chemical restraints, or unable to self-medicate. MONT. CODE ANN. § 50-5-226 (2002); Florida law prohibits admission of residents who are bedridden, those who have stage III or stage IV pressure sores and those residents who may require 24 hour nursing care. FLA. STAT. Ch. 400.407 (2005).

[6] In Walker, there was evidence that a patient had a history of falls and further that the patient’s doctor had instructed the nurse to leave the bed rails up at all times. A nurse lowered the bed rails and the patient fell. The court held that the plaintiffs were not required to present expert testimony because the breach of care alleged by the plaintiffs, leaving the bed rail down contrary to doctor’s orders, was so apparent as to be understood by a layman.

[7] Risk factors for falling could include dementia, confusion, unstable gait, prior stroke, arthritis, medications usage, history of falls, history of agitated behaviors, vision problems, and weakness or muscle atrophy.

[8] Dorn v. McTigue, 157 F. Supp. 2d 37 (D.D.C. 2001) (holding that District of Columbia Consumer Protection Act applied to the medical profession); Chalfin v. Beverly Enters., Inc., 741 F.Supp. 1162 (E.D. Pa. 1989), reconsideration den., 745 F.Supp. 1117 (E.D. Pa. 1990) (health care services provided by a nursing home were within the scope of “trade or commerce” provisions of Pennsylvania consumer protection laws); Winkler v. Interim Servs., Inc., 36 F. Supp. 2d 1026 (M.D. Tenn. 1999) (Disabled Medicare beneficiaries’ claims against home health care provider for violation of Tennessee Consumer Protection Act were not exempt on the grounds that the provider’s termination of services was regulated by the Medicare Act, given the alleged claims did not arise under the Medicare Act).

[9] According to the National Center of Elder Abuse, www.Elderabusecenter.org/laws, all fifty states and the District of Columbia have enacted legislation authorizing the provision of adult protection services in cases of elder abuse. The statutes vary widely on definitions of abuse, investigation responsibility, and remedies for such abuse.

[10] The Tennessee Adult Protection Act, TENN. CODE ANN. § 71-6-101 et. seq. (2002) does not apply to actions against “health care providers,” as defined in the TENN. CODE ANN. § 63-6-228 et. seq. Alternatively, Tennessee’s Medical Malpractice Act provides the statutory authority to suits against health care providers.

[11] See, Texas Health Enters. V. Geisler, 9 S.W.3d 163 (Tex. App. Fort Worth 1999) (repeated shortages of staffing and other acts of negligence supported punitive damage award against defendant); Estate of McIntyer by & Through Ex’r v. Transitional Health Servs., 1998 U.S. Dist. LEXIS 13965 (M.D.N.C. May 1998) (holding that defendant’s knowledge that it was operating in serious violation of several health codes and that it took very little, if any, action to remedy those violations might reasonably be found to constitute reckless indifference to the rights of their elderly residents with varying medical and non-medical needs); Beverly Enters. – Florida v. Spilman, 661 So. 2d 867 (Fla. Dist. Ct. App. 5th Dist. 1995) (testimony that expert was “outraged” at poor level of care of resident who developed and died from an infected decubitus ulcer supported punitive damage award against corporation and management company). See also, Christopher Vaeth, Allowance of Punitive Damages in Medical Malpractice Action, 35 A.L.R. 5th 145 (1996).

[12] Fair Housing Amendments Act, 42 U.S.C. § 3601 et. seq. (2000).

[13] Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. (2000).



By: Jeffrey Downey

About the Author:

PORTLAND, ME (September 20, 2007) – Forty five lawyers from Verrill Dana, LLP were recently selected by their peers for inclusion in The Best Lawyers in America® 2008 (Copyright 2007 by Woodward/White, Inc., of Aiken, S.C.).

The attorneys included are David S. Abramson (Family Law); Eric D. Altholz (Employee Benefits Law, Health Care Law); Peter B. Bickerman (Administrative Law, Appellate Law); Lisa S. Boehm (Employee Benefits Law); Robert C. Brooks (Workers’ Compensation Law); Juliet T. Browne (Environmental Law); Anthony M. Calcagni (Real Estate Law); Roger A. Clement, Jr. (Bankruptcy and Creditor-Debtor Rights Law); Judith M. Coburn (Trusts and Estates); Christopher J.W. Coggeshall (Real Estate Law); James I. Cohen (Government Relations Law); Kimberly S. Couch (Employee Benefits Law); Douglas P. Currier (Labor and Employment Law); Gene D. Dahmen (Family Law); Beth Dobson (Administrative Law, Banking Law, Health Care Law); Jonathan R. Doolittle (Bankruptcy and Creditor-Debtor Rights Law); George P. Field (Commercial Litigation); Diane M. Fitzgerald (Employee Benefits Law); William M. Fletcher (Real Estate Law); Gregory S. Fryer (Corporate Law, Mergers and Acquisitions Law, Securities Law); David L. Galgay, Jr. (Real Estate Law); Gregg H. Ginn (Employee Benefits Law); James G. Goggin (Intellectual Property Law); Mark K. Googins (Banking Law, Corporate Law, Mergers and Acquisitions Law); William S. Harwood (Administrative Law, Energy Law); David C. Hillman (Bankruptcy and Creditor-Debtor Rights Law); Stephen A. Johnson (Energy Law); Keith C. Jones (Corporate Law, Mergers and Acquisitions Law, Securities Law); Janet P. Judge (Sports Law); James T. Kilbreth (Commercial Litigation, Environmental Law, Natural Resources Law); Kurt E. Klebe (Trusts and Estates); Gene R. Libby (Family Law); Alan D. MacEwan (Corporate Law); Christopher S. McLoon (Tax Law); Mary McQuillen (Trusts and Estates); Suzanne E. Meeker (Employee Benefits Law); Richard G. Moon (Labor and Employment Law); Timothy J. O’Brien (Sports Law); Charles R. Oestreicher (Real Estate Law); James C. Palmer (Real Estate Law); A. Robert Ruesch (Construction Law); Michael V. Saxl (Government Relations Law); William H. Stiles (Health Care Law); David E. Warren (Corporate Law); and Peter B. Webster (Corporate Law).

Since its inception in 1983, The Best Lawyers in America® has become universally regarded as the definitive guide to legal excellence in the United States.  The current, 14th edition compiles more than 1.8 million responses from leading attorneys to an exhaustive survey regarding the legal expertise of their professional peers.  Because Best Lawyers is based on this confidential survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.  Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

About Verrill Dana:

Verrill Dana, LLP is a full service law firm with more than 100 attorneys conducting a nationwide practice from offices in Portland, Augusta and Kennebunk, Maine; Boston; Hartford;  and Washington, D.C.  To learn more, visit our website at www.verrilldana.com



By: lplank

About the Author:

The Quigley v. CHP injunction/declaratory relief case went to trial in May, resulting in a judgment for the CHP. The Plaintiff’s trial attorney, Wendy Lascher, Esq., is currently considering whether to appeal the judgment.

The presentation of much of the Plaintiff’s evidence was prevented by the Judge’s rulings on a couple of last minute defense motions in liming. The Court issued a ruling prohibiting testimony regarding helmet law citations that were illegally issued to the named Plaintiffs and other California bikers prior to 2005. This was problematic, as came out in the testimony of Mark Temple, because the California Highway Patrol adopted a policy several years ago not to ticket many of the BOLT members, including Plaintiffs Steve Bianco and Don Blanscet, so that notwithstanding that they ride with two inch wide helmets or sunglasses with DOT scratched into the side, their last CHP ticketswere all pre-2005. The Judge also rejected testimony with regard to helmet law tickets illegally issued by other law California law enforcement agencies which we had sought to admit on the basis that these other police agencies take their lead from the CHP on traffic law enforcement policy. For a more complete discussion of the legal issues from the motorcycle lawyers perspective,

But notwithstanding the trial Judge’s adverse rulings, there were major steps forward achieved at the trial that will serve us on appeal or in the next trial we bring to overturn California’s helmet law. For one, we obtained the unrehearsed and apparently unprepared testimony of Sergeant Valdez, whom the CHP designated as its employee “most knowledgeable” about CHP helmet law enforcement policy. Appallingly, Sergeant Valdez testified that he was unaware of the published California appellate decisions which severely restricted the CHP’s constitutional leeway to issue helmet law citations. Sergeant Valdez also stated that he was unaware of the federal injunction restraining the CHP from issuing helmet tickets in violation of these California constitutional restrictions.

As discussed in previous BIKER magazine BOLT columns, the two published California constitutional cases and federal injunction held that the CHP must not consider helmet fabrication and must have “probable cause” to believe that the rider has “actual knowledge” that his helmet has been recalled or determined by NHTSA to be noncompliant with FMVSS 218. Sergeant Valdez testimony that he was unaware of the foregoing case law is an insult to the Courts which issued those decisions, and makes plain that the CHP has no intention to comply with the constitutional restrictions on its authority to enforce the helmet law. Sergeant Valdez also made this plain when he testified that the officers decide to ticket a biker solely on basis of their subjective determination whether particular headgear “looks like a helmet” or not. This “if it looks like a duck, waddles like a duck and quacks like a duck” testimony plainly violates the prohibition on consideration of qualities of helmet fabrication. The CHP policy also plainly violates the federal court injunction, under which a rider can only be ticketed the officer has probable cause to believe that the rider has actual knowledge that his headgear has been recalled or determined noncompliant with FMVSS 218.

The Plaintiffs trial attorney, Ms. Lascher, is considering, among other things, whether the Valdez testimony is sufficient evidence upon which to mount an appeal from the defense judgment, weighing also the fact that the Judge prevented the Plaintiffs from presenting the biker testimony which would have established in fact, just as we did in the Easyriders case, that the CHP had issued hundreds of illegal helmet tickets in the dozen years following the above referenced California and federal decisions.

While we “lost” the trial, we have taken a big step forward in obtaining this testimony of Sergeant Valdez, and there is nothing in this result that dissuades us from our convictions about the validity of the constitutional positions central to BOLT’s attack on the California helmet law. The Plaintffs may or may not appeal the result in this case given the judicial limitations upon our introduction of our strongest evidence. But there is one thing about which all may be certain, and that is that BOLT will never give up the fight. We will not stop until we prevail. We will not stop until all California riders are accorded the ordinary dignity to make their own decisions about what to wear when they ride.

Ray Henke is a California motorcycle accident lawyer, former Governor of the Los Angeles Trial Lawyers Association and LATLA’s nominee for the “Trial Lawyer of the Year” Award. Mr. Henke also co-moderates Bruce & Ray’s Biker Forum.



By: Ray Henke

About the Author:

Pennsylvania Court Orders Sperm Donor to Lesbian Couple to Pay Child Support?

A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling that a legal expert believes might be the first of its kind in the U.S. A Superior Court panel last week ordered a Dauphin County.

Philosophically Speaking: Should the US ban guns?

Without getting into the Second Amendment, which is a legal wrangle, philosophically, morally: Should The United States ban all guns? Would it be the right thing to do? Would it end crime as we know it? Does the US have a cowboy mentality that compels it’s citizenry to own a firearm? Try,.

Phone numbers on youtube – legal action?

Recently, someone posted the phone number of someone they thought had stole their camera. (http://www.youtube.com/watch?v=svkv2u1h5.legal If you call the number, is it possible that legal action can be brought against you even if you don’t harass the person? well the person who had there camera stolen should just do.

Please help,want my kids back ,need someone to listen and give me legal advice.?

I have worked in child protection for 5+ years, would be more then happy to help you with any questions you have. But I do not know what your question is, or what the situation is so I can’t give advise. Please re-write your.

Please help??

I am a divorced mother who was wrongly accused of child neglect by my ex and his parents. His mother who turned me in 25 times in 6months. My ex husband was awarded custody after only going to court once and i had no legal representation. Since then my children have been in danger several times. My.

Pooping in display toilets at bath and body works?

is it legal to annulate in display toilets?? and if it isnt, are u allowed to use a sink?? i really need help, because im at the store, and the bathrooms are closed. be quick, because i feel seepage running down my leg into my shoe, and my shoes already.

Pro Bono lawyer?

I need to find a pro bono lawyer Dallas , Texas area. How can I go about finding one? Does anyone know of any? Below are some legal directories that might help locate a lawyer: http://www.austin-texas-lawyers-attorney.legal http://www.dallas-fort-worth-texas-lawye.http://www.houston-texas-lawyers-attorne. http://www.san-antonio-texas-lawyers-att. http://www.las-vegas-nevada-lawyer-attor.

Procedure for Legal Heir?

My grandfather passed away in january. His wife now becomes the legal heir. But he did not leave any will. He was a retired government employee and all the medical expences needs to be reimbursed in my grannys name for which i need to obtain a legal heirship certificate(in the name of my grand mother)..

Pronography?

I was reading a book and it mentions illegal pornography. I was wondering the difference between illegal and legal In the US, most pornography is legal. Pornography that contains sex with a minor (sex with anyone under the age of 18) is against federal law and in some states, the depiction of certain sexual acts is also illegal..

Pro-Slavery (1850’s) Pro-Abortion (today) ever notice they say the ‘EXACT’ same things?

In 1856 the speak of the House rose up and said: I personally do not own a slave, but I will never stand in the way of another man’s legal RIGHT to own a slave.the house erupted in a standing applause. The subject is different, the era.

Prostitution?

Why is it legal in Las Vegas and not anywhere else? I jus dont understand. It’s not legal in Las Vegas (Clark County), but it is legal where the total county population is less than 200,000 people, which is every other county except Reno. Basically, the state never regulated prostitution, and left the decision up to the counties..

Querying the Reasonable Person?

What is your opinion on the legal standard of ‘the reasonable person’- is it fair to hold everyone to such a standard? Can you see any flaws? It is the perfect standard.the standard is the reasonable person in that situation. This means what would the reasonable person do if they found their spouse in bed.

Question About Child Custody?

I am wodering if my sons father has custody, the only papers we ever signed were Establishment of Paternity. Does this give him automatic custody?? He is not involved in my sons life..yes..dead beat dad..I want my husband to take legal gardianship but the form says that both parents must sign if they have legal.

Question for Defense Attorneys – about defense of violent crimes?

How could a person go about finding out who paid for an offenders legal defense? For instance – if a church was sponsoring the defense of anti-gay hate crime. Would their financial support of legal fees have to be made public? You cannot. Attorneys’ records of who pays them.

What can be done in this situation? Do they have any legal standing to sue him??

If you pay someone to work on your home, pay them in advance, and they don’t finish the job.what can you do? This is not my situation; however, this is the situation of my friend’s parents. He called me today and told.

Random Versus #1: Guns vs. Abortion?

If you, as an American or as a foreigner with an opinion on the USA, could choose between strict(and I mean STRICT) gun controls, or fully endorsed, legal abortion, which would you pick? Isn’t abortion legal in the US?? That’s a crime also (not abortion itself, the fact that a woman doesn’t have.

Rape vs Molest?

I want to know the legal difference between rape and molest. Please do not respond unless you know how the law defines this. I have looked up the definitions but that is no help with what the difference is. Please cite sources if possible. Thank you. I suspect that, in most states, the elements of the.

Rapist rights?

Should a convicted rapist who fathers a child with his victim be able to fight for rights of said offspring? Considering that the rapist would probably be in jail until the child is of legal age, (And if he isn’t he should be), I think the point is moot. – I’d hate to be the judge on.

Recently I had court. Decision was made to give me custody.?

I have a paper stating I have been awarded full,physical,& legal custody of my twins & no further action will be taken by the court on the custody complaint.The boyfriend got his $600 dollars in exchange to sign off his legal rights.He has picked up the check,signed the.

Restraining order question?

i want to know all the legal procedures that i have to go threw in details if im going to go threw with it! is there a court fee and if they have to hear person that i want the restraining order side from too? usually a restraining order has a life of a number of.

Rule of law or Custom and Tradition?

Should the Rule of Law be replaced with Custom & Tradition since the legal system is a broken system? I am a fan of the Civil Law system that puts more emphasis on custom and tradition than our Common Law system, but it is difficult to define what custom and tradition is..

School says that because i broke the unwritten ‘no hoods on’ rule, i cant wear a sweatshirt at all anymore?

Is that legal? it’s cold! in the morning it’s hardly to 40degrees. yes, i had warning. a couple. they just said ‘take your hood off’. this rule is not written anywhere- it only says you can’t wear one INSIDE..

Shooting real pigeons in the UK?

Hi, I was just wondering if its still legal to shoot pigeons last time I read up on it, they were classed as vermin and you could shoot them provided you had landowners permission, if I remember correctly. Does anyone have any links or info regarding the law regarding shooting animals in england..

Shoud Divorce be illegal when children are involved?

I have never met a child that was glad there parents were getting a divorce. Some later in life accepted the divorce, but were unhappy at the time. I think that only when a parent is violent and harming the child should divorce be legal – in that case the parent.

Should 2 (or more) Straight People of the same sex be allowed to get married?

Why not? Practically and legally speaking if same sex marriage is allowed. I ask seeing as that there is no legal ‘gay’ test or set of qualifications for sexual orientation status in our society. Therefore ‘gay marriage’ and it’s marriage benefits, would apply to.

Should a country legalized fire arms/weapons?

whether you are agree or disagree, if u can please provide a link or more information about it. thankz=) I think they should be legal..Because the ‘bad guys’ are going to have weapons whether they are legal or not, and the innocent people wouldnt be able to protect themselves from the ‘bad guys’.

Should a driver at fault that causes someone to have a miscarriage be charged with manslaughter?

Even though abortion is legal in that state/country (so technically killing a fetus is not homicide or murder). What if the driver was driving under the influence? Abortion is about personal choice. If someone causes you to miscarry then they have taken away.

Should a thirteen 13 yo be allowed to seek and obtain medical treatment without her parent’s knowledge?

If Yes please state why, and the other way aorund. Thank you. No, A 13 year old is still a minor. A parent should be involved in all medical treatment. – No. Their parents are their legal guardians and should know everything.

Should abortion be legal or illegal?

why? Abortion is murder. Murder should be illegal. Unless the life of the mother is at stake, in which case I guess it’s OK to kill one person in order to save another. Roe v. Wade was ridiculous from both a moral and constitutional perspective. The constitution says absolutely nothing about medical procedures,.

Should abortion be Legal?

Ok, first of all, Democrats want abortion to be legal, why? Why would anyone want to kill an innocent living being? Sure, it’s still a fetus, but it has a soul, it is a living being! How can these people get away with this murder?! Yeah Yeah you can give excuses like. ‘Oh, she’s just.

Should alcohol be illegal?

Should alcohol be illegal and marijuana be legal? Think of it. Marijuana is less harmful to the body. So it made me think, why isnt it beer thats illegal rather than marijuana? At the present time the Government is not in a position to collect marijuana tax, or it definitely would. Beer is highly taxed.

More Legal questions please visit : LawFreeFAQ.com



By: lawfaq

About the Author:

 

In an arbitration agreement you, the patient, waive your right to sue your doctor. Instead, this agreement states that you will submit any dispute to arbitration.

Legal and binding

These agreements are both legal and binding. Medical providers are starting to pressure current and prospective patients into signing agreements, which seek to eliminate a patient’s basic constitutional rights. This includes a right to a trial by jury and a right to recover full compensation for the consequences of medical malpractice.

Any claim would instead be decided by a hand-picked group of arbitrators.

The advocates

Proponents of these agreements say that for patients, the case can be settled faster and more money can go to them (instead of the lawyer). Advocates argue that for doctors, if a majority of their patients sign these agreements, they can a signed arbitration agreement means that they can get a discount on their malpractice insurance.

The critics

Critics contend that arbitration agreements are actually more expensive for consumers, because arbitration costs are so high that patients often drop their complaints because they cannot afford to pursue them.

Furthermore, if you are being admitted to the hospital, you are generally not in a physical or mental condition to make a rational decision as to whether any future malpractice claim should be arbitrated.

Pressured into signing

Often times, patients are not told advance that you will be asked to sign such an arbitration clause and, so you generally don’t have the opportunity to discuss this matter with family members or discuss it with an attorney.

When you are presented with this agreement, the last thing on your mind is filing a malpractice suit. You are hoping that there will be no incidents of negligence and therefore, no reason to file a claim. Unfortunately, once you sign these agreements, regardless of the circumstance—they are upheld by appellate courts.

Must I sign the agreement?



The good news is that the law Utah passed in 1999, allowing doctors to use arbitration agreements was modified in 2004. The new law says that doctors may use the agreements, but can’t deny treatment if a patient declines to sign them.

So, why sign?



Your doctor can refuse to see you, but if he or she does, find another doctor and complain to the state agency that licenses physicians.

Still an option



Hopefully, you’ll never have to pursue a medical malpractice claim against a physician. But if you do, arbitration is still usually an option, regardless of whether you signed the agreement. Courts would much prefer that medical malpractice cases are arbitrated before they go to trial. In any case, you’ll almost certainly be in a better position if you haven’t limited your options by signing an arbitration agreement up front.



By: Patricia Woloch

About the Author:

Most of us have seen some movie character jump up at his table in the courtroom to bellow, I’ll appeal this all the way to the Supreme Court! Now, that person is you, but you’re not certain whether an appeal makes sense. Or perhaps your adversary is appealing and you simply need to know what to expect. This article addresses five common misconceptions about appeals in California civil cases.

Myth No. 1: An appeal gets your case heard by the Supreme Court.

An appeal is heard before an intermediate appellate court and has only a remote chance of ever getting to the United States Supreme Court or California Supreme Court. You have a right to appeal to the intermediate court, but no right to have your case heard by either supreme court, both of which are very selective about the cases they hear. The percentage of cases that make it to either court is in the very low single digits.

Myth No. 2: An appeal is a second trial of the case.

An appeal does not even remotely resemble a trial. An appeal is decided by three judges who won’t hear any of the witnesses, won’t see the arguments the lawyers made in the trial court, won’t see the parties and won’t form any of the same emotions that the jury did at trial. Their view of the case will be based almost entirely on stacks of paper and written arguments submitted by the parties, with only a brief oral argument (a half hour or less, in most cases).

The judges on the appellate court aren’t there to decide who should have won at trial. They are there only to determine if some error was made in the trial proceedings. Thus, the best a party can expect in the majority of appeals is that the court will send the case back to the trial court for further proceedings, such as a new trial.

Myth No. 3: An appeal will drag the case out for years.

It’s possible, but not necessarily true. The court’s backlog and the amount of extraordinary activity in any given case will determine how long the appeal takes.

Appeals from federal courts in California generally take much longer than appeals from California state courts. While federal appeals often take two years or more, cases in some districts and divisions of the California Court of Appeal can be decided in well under a year from the time the appeal is filed, so long as there is no unusual activity in the case.

The timing of a decision on appeal may be relevant to issues such as settlement, fees, and collateral for the appeal bond. You should ask your appellate lawyer what to expect in your case.

Myth No. 4: You won’t have to pay the judgment while the case is on appeal.

Some people believe that they can forestall the collection of a judgment against them merely by filing an appeal. However, the filing of an appeal does not, in itself, prevent the winner from enforcing a money judgment.

To forestall collection, the party appealing must also post a bond to guarantee the judgment creditor’s ability to collect at the conclusion of the appeal if the judgment is affirmed. The amount of the bond is set by the court and is usually in an amount greater than the judgment to allow for the accrual of interest on the judgment while the case is on appeal. The judgment debtor who appeals must provide collateral for the bond.

Myth No. 5: Your trial lawyer is always the ideal lawyer to handle your appeal.

It’s tempting to think that the best lawyer for your appeal is the lawyer that handled your case at trial. Who knows your case better, after all?

That’s the problem. Your trial lawyer has so much time, energy, and emotion invested in the case, that he can lack the objectivity necessary to identify the best strategy and arguments for appeal. Combined with many critical differences between a trial and an appeal, these factors often make your trial lawyer less than the ideal attorney to handle your appeal.

Could your trial lawyer do a great job on your appeal? Sure, especially if she has experience with appeals. But many trial lawyers who recognize the differences between trials and appeals also recognize that they should refer their clients to appellate counsel, or at least consult with appellate counsel during the course of an appeal.



By: Greg May

About the Author:

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By: rohit

About the Author:

The Israeli economy is characterized by modern industry, technological and scientific knowledge, intensive activity in foreign trade and a well-developed financial market. Since Israel’s natural resources are poor, priority is given to research and development investments to promote the technological and qualitative edge of Israeli products in international markets. In addition, Israel has a well-developed service sector, which fully supports industry via banking, accounting, legal and technological services.

Israel is acclaimed for its highly skilled labor force, inviting the attention of international technological giants such as IBM, Microsoft, and Intel, which have established and maintain R&D centers. Teva, the largest manufacturer of generic pharmaceutics, is an Israeli enterprise, as are world-leading hi-tech enterprises such as Checkpoint, Alvarion and Aladdin Knowledge Systems. Additionally, the Internet revolution has produced hundreds of Israeli startups, the most renowned being Mirabilis, the manufacturer of ICQ, the famous instant messenger.

Israel’s legal system, particularly comprising Intellectual Property laws, has an excellent reputation. Israel is also a member of most major international conventions of Intellectual Property, such as the Paris Convention and the PCT Convention, implementing into the law most standards outlined in these conventions. A partial list of the conventions and treaties of which Israel is a member is cited at the end of this article.

Filing: A patent application has to be filed at the Israeli Patent Office in Jerusalem. The filing process is quite simple in comparison, for example, to the American practice. The filing fee is "modest", currently averaging about $200.

The specification of an application for patent may be in English, one of Israel’s official languages, in advantageous contrast to other countries, in which the applicant must have the entire specification or at least the granted claims, translated into local language.

Priority: An Israeli application may claim priority from a former application for patent in a “convention state” (generally speaking, a state or territory to which the Paris Convention applies) if the following terms are sustained:

The former application for patent was filed no more than 12 months from the latter;

An application for priority has been filed within two months from the filing date (of the Israeli application for patent);

A certified copy of the former application (specification and drawings) was provided to the Israeli Patent Authority within 12 months from the filing date;

In the case wherein the prior application is not drafted in an Israeli formal language, the Israeli Patent Authority may ask the applicant to provide a translation of the specification into an Israeli formal language (English being among such).

The Israeli Patent Examination: The Israeli Patent Authority performs an examination to determine whether the application complies with the Israeli law and regulations. This examination is usually fair and considerably less formal than, for example, the examinations of USPTO. Emphasis of the examination is on the worldwide common criterions for patentability: novelty, inventiveness, industrial applicability, and usefulness.

Not all inventions are eligible for patent protection in Israel. For example, mathematical formulae and methods for medical treatment of human beings are ineligible for patenting in Israel. It should be noted that methods for doing business are also ineligible for patenting in Israel. Practically, the Israeli Patent Authority has adopted the European attitude to software-related inventions and methods for doing business.

Prosecution: The Israeli Patent Authority starts the examination process about four or five years after the filing date in Israel, depending on the field of the invention. Nevertheless, the examination can be expedited in the event a third party is utilizing the claimed invention. The fee for applying for expediting an examination is about $150.

A response to an Official Action should be filed within four months, although the applicant has the option to delay his response. In this case a fee of about $15 per additional month should be paid. Generally speaking, the Israeli Examiner is not inclined to abandon an application for patent if the applicant thereof has failed to response to an Official Action within the required period. There is no limit on the “rounds” (Official Action and the response thereof) of prosecuting an application, and no fee need be paid upon issuing or responding to an Official Action.

According to Israeli patent practice, an amendment to the specification or claims requires replacing the previous pages with new pages. The new pages have to be marked by notations identifying the version of the page. For example, “123456/2” at the top of a page denotes that the page is the second version of the corresponding page of Israeli Patent Application Number 123456. In addition, the applicant must provide the marked up pages thereof.

Information Disclosure Statement: An applicant of an Israeli Patent Application is required to inform the Israeli Patent Authority about any existing prior art of which he is aware. This demand is continuous, expiring only at the Publication Date. In this regard, Israel has adopted the USPTO attitude.

Reliance on conclusions of examination in other countries: One of the most important points of patent prosecution in Israel is Section 17(c) of the Israeli Patent Law. This section enables the Examiner to adopt results of a parallel application examination in the following states: Austria, Australia, United States, Germany, Denmark, The United Kingdom, The Russian Federation, Japan, The European Patent Office, Norway, Canada and Sweden. In other words, if at the time the Israeli examination takes place, a patent on a parallel application in one of the aforesaid states has been granted, the Israeli Examiner is liable to adopt this result, and grant a patent. This spares the applicant excess prosecution effort.

Notice of Allowance: When the Examiner concludes that the application in its current form complies with the Israeli Law and Regulations, a Notice of Allowance is issued. After paying a fee of $120, the entire application, including the specification, is officially published. For three months following the Publication Date, anyone may file an objection to grant of a patent. Should such an objection be filed, the arguments presented are examined, and if the Examiner rejects the objections, or if no objection has been filed, a patent is granted.

Confidentiality: With the exception of general details such as the applicant name, the invention title, and so on, the specification is not available to the public until the Publication Date.

Maintenance fees: An Israeli patent may be in effect 20 years from its filing date. Nevertheless, this period can be extended up to five years in patents for medicaments.

The maintenance fees are as follows:

Before the end of the 6th year from the filing date: $70;

Before the end of the 10th year from the filing date: $420;

Before the end of the 14th year from the filing date: $870; and

Before the end of the 18th year from the filing date: $1050.

Alternatively, a patentee may pay $2250 in advance, for the entire 20 year period of the patent’s lifespan.

A delay in paying maintenance fees may result in abandoning the patent.

Patent attorneys: According to Israeli Patent Law, patent attorneys (as well as licensed practicing advocates) possess exclusive rights for wage brokering regarding patent prosecution, design and trademark registration, preparation of all documents for intellectual property authorities in Israel and abroad, and representation of applicants before the intellectual property authorities.

Conventions: Israel is a member of most major international treaties on intellectual property rights, including:

Trade Related Aspects of Intellectual Property (TRIPS)

Paris Convention for the Protection of Industrial Property, Stockholm revision (1967).

Bern Convention for the Protection of Literary and Artistic Works.

Rome Convention (1961): International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations

Patent Cooperation Treaty, (PCT) (Washington 1970)

Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods (1891); Lisbon revision (1958); Stockholm revision (1967).

Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (1957); Stockholm revision (1967).

Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (1958); Stockholm revision (1967).

Strasbourg agreement Concerning the International Patent Classification (1971).

Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971).

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977).

International Convention for the Protection of New Varieties of Plants (UPOV) (1979) (1991 Act).

Universal Copyright Convention (1952).

Convention Establishing the World Intellectual Property Organization (1967).

Disclaimer: The information on this web site is general and cannot take the place of professional advice given with full knowledge of the specific circumstances of each case following consideration of the relevant facts and laws. Furthermore, for the sake of clarity, some details have been omitted or partially specified.

 



By: Reuben Berman

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When a defendant or his attorney files a motion to suppress evidence he is asking the judge to rule that evidence is inadmissible because it has been obtained illegally. If evidence is inadmissible then it cannot come in at a Defendant’s trial. If incriminating evidence is kept out of a defendant’s trial, then the prosecution’s case may be seriously weakened or destroyed.

There are a number of reasons why evidence may be illegally obtained and therefore inadmissible. A good DUI lawyer in San Diego will review your case to determine whether the possible reasons for evidence to be inadmissible are present in your case. For example, if a police officer arrests a defendant but does not read the defendant his Miranda rights then any statements made by the defendant after his arrest and before the reading of his Miranda rights may be inadmissible.

In DUI criminal cases in San Diego the most damaging pieces of evidence are usually the results of breath or blood tests as well as a defendant’s performance on field sobriety tests. So, excluding a defendant’s post-arrest statements isn’t usually going to seriously weaken the prosecution’s case.

Another reason why excluding post-arrest statements may not put a big dent in the prosecutions case is that appellate courts have ruled that the initial contact between a police officer and a driver subjected to a DUI stop is not an arrest. Defendants generally make their most damaging statements early on in their contact with the police; for example, telling an officer how much they had to drink.

Because defendant’s generally make the most damaging statements early on, during the ‘investigation’ rather than the ‘arrest’ phase of the DUI stop, and because the most damaging evidence is usually the blood or breath tests, not the defendants’ statements, excluding evidence based on a failure to advise a defendant of his Miranda rights is rarely the key to winning a DUI case in San Diego.

But there is still good reason to file a motion to suppress in the right case; a motion to suppress in a DUI case can be a useful tool when a defendant argues that he was stopped or arrested illegally, as opposed to arguing that he made post-arrest statements without a Miranda warning. For example, if a police officer observes that an eventual defendant’s car wheels touch a lane line and observes no other irregularities in the defendant’s driving, then the police officer might not have a legal basis to stop the defendant. If the officer nonetheless stops the defendant, and the officer’s investigation leads the officer to suspect that the defendant is driving under the influence, then the defendant may argue to the judge that the initial stop was illegal.

If the defendant or his attorney can persuade the judge that the initial stop was illegal, then the judge might rule that all evidence obtained after the illegal stop – i.e., the result of a Blood Test, Breath Test or a Field Sobriety Test – is inadmissible in trial.

A motion to suppress can also be valuable because it offers an opportunity to a DUI lawyer to cross-examine a police officer in court in order to find out what the officer’s testimony will be at trial.

Another motion that may be filed is called a Pitchess motion. If a defendant wins a Pitchess motion then the judge will order the Police Department to give the defendant or his lawyer the contact information for other citizens who have filed complaints against the defendant’s arresting officers for dishonesty or use of excessive force. As discussed above, the case may arise where an officer writes in his police report that a defendant swerved across a lane line, and the defendant knows that his wheels just touched the lane line. In that kind of case it might be useful for a defendant to file a Pitchess motion in order to locate witnesses who might call the police officer’s credibility into question by testifying that the police officer has been dishonest in other cases.

To cause the court to hear a motion to suppress, a DUI attorney prepares a legal document that includes argument to persuade the judge to decide the motion in the defendant’s favor, and makes four copies of the document. The attorney goes to the San Diego courthouse to provide the documents to a court clerk, and asks the clerk to set a date when the motion may be heard in court, in front of a judge. The clerk keeps two copies for the court, and returns two copies to the attorney with the court’s official stamp. The attorney then takes the two stamped copies to the office of the prosecutor (the San Diego City Attorney or the San Diego District Attorney). The prosecutor’s office keeps one copy, and provides the attorney with a stamped copy. The attorney then has a copy of the motion with confirmation from the court that the motion has been filed and a date has been set, as well as confirmation from the prosecutor’s office that he has provided the prosecutor with a copy of the motion.



By: tim

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