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The 4 th of July is the holiday that marks our beautiful country’s independence. On July 4, 1776, the Declaration of Independence was signed and America became an independent nation. In honor of what some call, “America’s 240 th Birthday” here are 10 fun facts that many may not know about the 4 th of July and the Declaration of Independence. 1. Three of our first five Presidents passed away on the July 4: John Adams, Thomas Jefferson and James Monroe. 2.     Thomas Jefferson was the first President to host a 4 th of July party at the White House. 3.     Only two signatures (out of 56) were signed on the Declaration of Independence on July 4, 1776. 4.     The additional 54 were signed on Aug. 2, 1776. 5.     Congress deemed fireworks as the official way to celebrate the holiday in 1777 (in honor of the first anniversary). 6.     July 4 th is the biggest hot dog holiday of each year. 7.     On the first 4 th of July there were 2.5 million people in America. Fast-forward to 2016 and there are now 318.9 million people in America! 8.     4 th of July did not become a federal holiday until 1870. 9.     The oldest signer of the document was 70, and the youngest was 26. 10. More than 14,000 fireworks are launched each year. When enjoying your 4 th celebrations, share these fun facts with your friends and family! Here’s to a safe and happy 4 th of July!

In 1863, President Abraham Lincoln pushed the first federal whistleblower statute through Congress. The False Claims Act (“FCA”), otherwise known as “Lincoln’s Law,’’ contained whistleblower, a.k.a. “ qui tam” provisions that authorized private citizens to sue (on behalf of the government) companies and individuals that were defrauding the government. The Latin phrase, “ qui tam pro domino rege quam pro se ipso in hac parte sequitu r,” means “he who brings an action for the king as well as for himself.” The FCA imposes liability on any person who submits a claim to the federal government that he or she knows (or should know) is false. Total False Claims Act recoveries since the 1986 amendments now total over $17 billion, with nearly $1 billion recovered in the first quarter of FY 2006 alone. In the case of Universal Health Services v. United States ex rel. Escobar, the United States Supreme Court held: (1) The implied false certification theory can be a basis for liability under the False Claims Act when a defendant submitting a claim makes specific representations about the goods or services provided, but fails to disclose non-compliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services; and (2) liability under the FCA for failing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. The underlying facts of the case involved Yarushka Rivera, a 17-year old female and beneficiary of Massachusetts’ Medicaid program, who for several years before her death, received care from an affiliate of Universal Health, a Massachusetts mental health facility.  In 2009, Yarushka had an adverse reaction to a medication that was purportedly prescribed by a physician to treat bipolar disorder.  She suffered multiple seizures requiring hospitalization before her death.  After her death, an employee of the health care facility advised Yarushka’s mother and step-father that few health care employees were actually licensed to provide mental health care and that supervision of them was minimal.  It was determined that only one (1) of the five (5) employees that provided mental health services to Yarushka were properly licensed, including the individual who diagnosed Yarushka as suffering from bipolar disorder.  Moreover, it was determined that the professional who prescribed the medication was a nurse, who lacked authority to prescribe medication without proper supervision.  The health care facility’s improper practices were systemic such that 23 employees were found to be providing health care services absent the proper license and/or supervision.  Many staff members misrepresented their qualifications and licensing status to the Federal Government to obtain individual National Provider Identification numbers, which are submitted in connection with Medicaid reimbursement claims and correspond to specific job titles. Subsequently, Yarushka’s parents filed the instant qui tam suit, alleging that Universal Health violated the False Claim Act under an implied false certification theory of liability.  More specifically, it was alleged that Universal Health submitted reimbursement claims that made representations about the specific services provided by specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifications and licensing requirements for these services.  Unaware of these deficiencies, the Massachusetts Medicaid program paid the claims.  The Federal District Court dismissed the case because none of the regulations violated was a condition of payment.  The US Court of Appeals for the First Circuit reversed in part holding that each time Universal Health submits a claim, it implicitly communicates that it conformed to the relevant program requirements.  The appellate court determined that Universal Health submitted false claims because it knowingly misrepresented compliance with a material precondition of payment.  Because of differing views regarding the validity and scope of the implied false certification theory of liability amongst several US appellate courts, the Supreme Court accepted review. The Supreme Court found that Universal Health failed to disclose its noncompliance with federal regulations, and misled the federal government when submitting claims for payment by using payment and other codes that corresponded to specific counseling services as well as National Provider Identification numbers corresponding to specific job titles. Thus, the Supreme Court held that a condition of payment need not be expressly stated as such in the statute, regulation, or contract, and that the implied certification theory can be a basis for FCA liability where the claim submitted for payment “does not merely request payment but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.” The Court declined to decide whether all claims for payment implicitly represent that the billing party is legally entitled to payment when no representations in the submission for payment are made. Finally, the Supreme Court emphasized that not every requirement of the regulations and contractual requirements that companies and individuals are often required to follow will be material giving rise to a valid claim under the FCA.

When a person looks up the doctrine of sovereign immunity online, they will likely find the phrase, “the king can do no wrong.” While we obviously do not have a king in America, addressing the sovereign immunity doctrine is still something we must consider when bringing claims against federal and state entities.  In America, sovereign immunity means that federal and state governments can limit the types of claims brought against them, the amount of damages that can be recovered, when the claims must be filed, and additional benefits to which normal defendants are not entitled. In Pennsylvania, laws such as the Sovereign Immunity Act and the Political Subdivision Tort Claims Act limit a person’s ability to bring a claim against the state and government units.  For example, while most personal injury claims in Pennsylvania must be filed within two years from the date the injury occurred, a person generally is required to provide a government unit specific notice of their intent to bring a claim within six months from the date of the injury.  Moreover, the Tort Claims Act limits the types of claims that can be brought against a local agency and caps the recovery of damages at $500,000. While I could discuss additional differences and limitations created by sovereign immunity laws, this is not my purpose for writing.  My purpose is to ensure that our readers do not unintentionally waive their claims by not acting until it is too late. Many people review the statute of limitation relevant to their claim, without ever considering whether sovereign immunity laws could affect their potential case. While researching various sovereign immunity issues for a recent case, I found many examples of people whose claims were forever barred due to their failure to send appropriate notices or file their claims on time. Therefore, if a person has a claim against any defendant who may be associated with the government, it is important they take extra precaution and act quickly after the incident or their claim may be barred.

As I have been going door-to-door over the past few weeks, people have been asking me the same question: “What will be your number one priority as our judge?”  I’ve answered that question on multiple occasions in speeches and in private conversation, but for those who are still wondering, I thought it might be helpful for me to answer in this column. I believe that the primary responsibility of a circuit court judge is to protect the communities in which he/she lives and serves.  Sure, there are many, many other responsibilities that go along with the office, such as applying the law as it was written, working hard to make sure cases move toward a conclusion quickly and fairly, making sure that litigants are treated with courtesy and respect, etc., etc..  However, everything else takes a back seat to making sure our streets and our homes remain safe places to live and raise a family.  When parents send their kids off to school, they should not have to worry about whether their sons and daughters will return home safely. I don’t think anyone would argue that the number one threat to our safety today is the epidemic of illegal drugs that have flooded into our communities over the past several years.  Our state leads the nation in the rate of drug overdose deaths, and we lead by a very, very wide margin.  With the increase in drug use comes an associated increase in violent crime and deadly diseases transmitted by addicts who share needles to inject themselves.   As I have said on many occasions on the campaign trail, our society is under attack.  We have to fight back.  We have to take a stand together, as a community, to rid ourselves of this evil plague. As a judge, I believe it is my responsibility to do whatever I can to help eliminate this threat to the safety of our communities.  The way to do that is to reduce, and ultimately eliminate, the supply of and demand for illegal drugs in our area.  To eliminate demand, we must work to educate our young people about the dangers of drug use, and to treat those who are already caught in the web.  Experience has proven that simply locking drug addicts in jail will do little to reduce the problem, because once they are released they are still addicted.  We need to utilize and expand the Drug Court program, and we need more treatment facilities for addicts. I take the opposite approach in dealing with those who sell drugs.  I believe the way to eliminate those people, and thus the supply of drugs, is to create an atmosphere where they are afraid to bring their drugs into our communities.  We do that by supporting law enforcement in their efforts to catch the dealers, and by making sure that once they are caught and convicted, they are given the maximum possible sentence for their crimes.  If they know they will face the most severe possible penalties if they are caught and convicted, they will go elsewhere to peddle their poison. There may have been a time when lesser sentences were appropriate for those convicted of selling drugs, depending upon the particular circumstances of their cases.  However, desperate times call for desperate measures, and the last few years have shown us that we are truly caught in desperate times.  Our people, our children, are dying every week.  Our response needs to be equal to the threat we are facing, and I don’t ever recall our communities being confronted with a greater threat than we currently face.  We have all heard the saying that says you don’t bring a knife to a gun fight.  The drug dealers have been firing their guns at us for several years now.  It’s time for us to respond in kind.

Throughout my career as an attorney, I have had the opportunity to speak with many people about very difficult situations in their lives. In these conversations, there have been times where the person I am speaking with has had a strong legal claim and has suffered great damages, but we have not been able to help them.  One of the reasons a person may not be able to file a lawsuit is because of something called a statute of limitation. A statute of limitation is a law that limits the amount of time someone has to file a lawsuit.  The amount of time provided by the law is incredibly important.  Moreover, each state has its own specific laws regarding the amount of time someone has to file.  While some exceptions exist, if the statute of limitation for a claim passes, the claim will no longer be able to be brought. For example, in Pennsylvania, West Virginia and Ohio, the statute of limitation for a personal injury case is generally two years from the time of the injury.  Therefore, if someone was hit by a drunk driver on April 22, 2014, they would have until April 22, 2016 to file suit.  If the person does not file suit by April 22, 2016, they would not be able to bring their claim.  Additionally, the injured person would have to contact an attorney well in advance of the April 22, 2016 deadline to give the attorney enough time to file the case. Every type of claim has a statute of limitation.  Therefore, it is important for a person to be aware of their time restriction regardless of whether they are claiming a contract was breached, their property was damaged or an insurance company improperly denied their claim.  As a result, I would recommend anyone who thinks they may have a claim to contact an attorney as soon as possible. At Bordas & Bordas, a case’s statute of limitation is one of the first things we look at when deciding whether we will be able to help someone.  If any of our readers have a question regarding a potential claim, I would encourage them to reach out to our firm.  All of our initial consultations are always free.  Additionally, if we cannot help someone, I always do my best to try and point the person in the right direction.

Smartphone ownership is growing. In 2011, 52 percent of drivers reported owning a smartphone, and by 2014 that number had grown to 80 percent. The greatest increases in smartphone ownership are among adults age 40 and older. At any given daylight moment across America, approximately 660,000 drivers are using cell phones or manipulating electronic devices while driving, a number that has held steady since 2010. Five seconds is the average time your eyes are off the road while texting. When traveling at 55 mph, that's enough time to cover the length of a football field blindfolded. In 2014, 3,179 people were killed, and 431,000 were injured in motor vehicle crashes involving distracted drivers in the United States.  Ten percent of all drivers 15 to 19 years old involved in fatal crashes were reported as distracted at the time of the crashes. This age group has the largest proportion of drivers who were distracted at the time of the crashes. Drivers in their 20s are 23 percent of drivers in all fatal crashes, but are 27 percent of the distracted drivers and 38 percent of the distracted drivers who were using cell phones in fatal crashes. The percentage of drivers text-messaging or visibly manipulating handheld devices increased from 1.7 percent in 2013 to 2.2 percent in 2014. Since 2007, young drivers (age 16 to 24) have been observed manipulating electronic devices at higher rates than older drivers. (NHTSA) In Pennsylvania, distracted driving citations increased by 43 percent statewide between 2014 and 2015 – with more men being cited (67 percent) than women (31 percent). Forty percent of the people cited were in their 20s; 26 percent were in their 30s; 15 percent in their 40s; and, people in their teens and 50s, came in at 7 percent, respectively. In 2015, 60 percent of the citations were issued by local police, and the greatest number of citations are given between 8 a.m. – noon.  Not including Philadelphia County, the top five (5) counties with the most distracted driver citations was: (1) Montgomery; (2) Allegheny; (3) York; (4) Bucks; and (5) Chester. As of June 2012, 39 States have enacted anti-texting laws, and 10 States have passed laws banning all hand-held phone use by drivers. Pennsylvania law prohibits drivers from: (1) wearing or using headphones or earphones while driving; (2) texting while driving, which includes sending, reading or writing texts or emails while car is in motion.  Title 75, sections 1621, 1622, 3316 (texting), and 3314 (headphones).  A $50 fine, plus court costs and fees, can be assessed against an individual found to be texting while driving. West Virginia is one of the few states that have a hand-held cell phone use ban for all drivers. Like many other states, West Virginia prohibits all drivers from texting, and bans novice drivers from all cell phone use. The penalties for distracted driving in West Virginia include a $100 fine for first-time offenders, which increases to $200 for second-time offenders and $300 for third and subsequent offenses. In addition, third and subsequent convictions carry three demerit points against your license. Ohio law bans all drivers from texting and novice drivers are not allowed to use cell phones behind the wheel.  The fine for adult drivers is $150, while novice drivers who violate these laws face a 60-day driver's license suspension, in addition to the $150 fine. In order to reduce the risk of catastrophic injuries and death, in addition to abiding by the aforesaid laws, please consider completing phone conversations before you start driving your car.  If your phone rings while you are driving, and you are unable to pull over and park to answer it, please consider allowing the call go to your voice mail.  If everyone followed these few simple rules while driving, thousands of lives would be saved every year.

During winter break of my first year as a law student at Notre Dame, I participated in a program called Group Alternative Live-In Legal Education, and better known as “GALILEE.” GALILEE is a unique, one-credit course during which law students form small groups and select a city in the United States, then schedule a number of visits to various organizations, with the goal of gaining a better understanding for different types of public interest and public service legal work. During the visits, students generally have the opportunity for one-on-one discussion with attorneys who have experience in these fields. Examples of organizations visited often include the offices of public defenders, county courthouses, legal aid offices, immigration law clinics, non-profit organizations that offer some element of legal assistance and pro bono divisions of for-profit law firms. The program is a great chance for law students to get a feel for different potential career paths early on in their legal education and to get a first-hand understanding of the need for social justice work in our legal system nationwide. My GALILEE group visited a number of legal organizations in Chicago. While I really enjoyed each experience, and learned a lot about some areas of law and career options I had never really considered before, there was one visit that will always stick out in my mind as being especially memorable and meaningful. We started one of our days off with a visit to the Center on Wrongful Convictions, at the Northwestern University School of Law ( http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/). The Center on Wrongful Convictions is akin to what many people know as an “innocence project,” and, by its own assertion, is dedicated to work that seeks to “reform the criminal justice system” and “to identifying and rectifying wrongful convictions and other serious miscarriages of justice.” ( http://www.law.northwestern.edu/legalclinic/wrongfulconvictions/aboutus/). These objectives are primarily achieved through representation of inmates in post-conviction efforts, research on the causes of wrongful convictions, and policy reforms aimed at minimizing future wrongful convictions. The Center is run by a number of staff attorneys who supervise and work with Northwestern law students, as well as pro bono attorneys. Second and third year law students at Northwestern have the opportunity to enroll in the Center as a clinical course, and gain a hands-on experience, reinvestigating crimes, speaking to clients, reviewing evidence, drafting briefs and other legal documents, and appearing in court, among many other things. In addition to the staff and student attorneys, the Center also benefits from volunteers. Following an introduction from several staff members at the Center, my GALILEE group then sat down for a talk from a woman who was a volunteer there at the time. In a calm and very well-spoken manner, this woman proceeded to walk us through one of the most horrifying things that could happen to a person, detailing her recollection of a brutal physical attack and forcible sexual assault she had endured many years earlier. She stated that she remembered during the attack her promise to herself to remember every detail of the man who was responsible, so that she could help police find him and prosecute him. She explained the many times during the course of the criminal case against this man where she was required to provide descriptions, and that she felt confident in her memory and description each time. She told us how the man was eventually found guilty of her assault, and imprisoned. Then she told us about how, after the man had already served well over a decade of his sentence, advancements in testing of DNA evidence established that this man was not, as she had long believed, her assailant. The woman told us of her shock in learning of this development, and the many emotions she experienced as a result. She was so honest in her descriptions, and I will never forget her telling us how she encountered the man who she had believed for so long had hurt her, and apologized to him, asking his forgiveness, which he granted and they shared a hug. She went on to discuss the possible reasons for her own, and many other, incorrect eyewitness accounts which have contributed to wrongful convictions over the years, and how this experience inspired her to become a victim advocate and participate in the efforts of the Center and other “innocence projects” to rectify and prevent wrongful criminal convictions across the United States. Most memorable about this discussion, however, was the woman’s comments at the end of our talk. She told us that the man who had wrongly served an 18 year prison sentence was back in prison, this time for the murder of a young woman. She said that the whole situation really raised some of the fundamental issues surrounding wrongful convictions. On the one hand, it was possible that the 18 years that this man spent behind bars had actually prevented him from committing other crimes during that period. On the other, it is also possible that spending 18 years in prison cultivated violent tendencies or otherwise contributed to the commission of later crimes after he was released. She didn’t comment much more on the specifics, but reiterated that these are reasons that wrongful conviction work is so important to our criminal justice system and society. Years later, while watching the popular and controversial Netflix documentary Making a Murderer, I heard the very same story that I had hear from this woman during my GALILEE visit to the Northwestern Law School Center on Wrongful Convictions. The woman volunteer that I had been privileged to meet with during my GALILEE visit was Penny Beernsten, the victim of the sexual assault which resulted in the wrongful conviction of Steven Avery, who is the subject of the documentary series. While it was incredible to recognize such a significant personal connection to the series, I found myself drawn most of all to my memories of Ms. Beernsten as an advocate and volunteer at the Center. Her courage and strength, and desire to invoke positive changes in the social and justice systems in our country, arising out of terrible tragedies such as sexual assaults and wrongful convictions, is something that wasn’t captured by the documentary series. I am all the more grateful for my visit to the Center on Wrongful Convictions, and the opportunity to hear Ms. Beernsten speak, and hope that others who may have watched Making a Murderer, or other true crime television series, keep in mind that these types of shows, while designed primarily for entertainment, also present serious issues which continue to surround our criminal justice system nationwide.

It is difficult to understate the magnitude of the dangers facing our elderly friends, family members and loved ones. We would like to believe that these dangers can be prevented when our elderly citizens are under the protection of a long-term care facility.  Tragically, however, this is not always the case. According to a 2012 Research Brief published by the National Center for Elder Abuse, “Elder and vulnerable/dependent adult abuse affects millions of people in the U.S.  It occurs regularly and in long term care settings such as nursing homes and board and care homes/assisted living facilities.  It has been reported that ‘a vast reservoir of undetected and unreported elder mistreatment in nursing homes may exist.’” Abuse of Residents of Long Term Care Facilities, available at http://www.ncea.aoa.gov/Library/Review/Brief/ index.aspx. That research paper cited some truly staggering statistics.  For example, according to the brief, “Nearly 1 out of 10 homes had violations that caused residents harm, serious injury, or placed them in jeopardy of death.”  Further, “ver 50% of nursing home staff admitted to mistreating (e.g., physical violence, mental abuse, neglect) older patients within the prior year in one study.” Id. (emphasis in original). What can be done to minimize the occurrence of these tragic and largely preventable injuries and death? Clearly, the nursing homes themselves, their owners, their administrators and their staffs have a role to play in doing whatever they can to make the safety of their residents a top priority.  Efforts along these lines should start with the commitment to provide enough caring and attentive staff members to meet the needs of their residents.  Understaffing should simply never occur. State and federal governments also have a role to play, as do the other agencies charged with reviewing and preventing instances of elder abuse and neglect.  Of course, our communities also have a role to play in enforcing these rules and community standards.  Once important aspect of community rule-enforcement is the civil jury system, which holds careless long-term care facilities responsible for the harm they have caused. Accordingly, lawyers should be aware of the range of tools available to help injured residents or their families seek justice. Among those tools are the ordinary negligence laws, the laws governing professional liability actions, and the Ohio Wrongful Death Act.  O.R.C. §§ 2305.113, 2125.01, et. seq.  In addition to these powerful tools, lawyers should not hesitate to utilize the Ohio Nursing Home Residents’ Bill of Rights when helping members of the community enforce the rules by providing just compensation to injured residents and families. The Ohio Nursing Home Resident’s Bill of Rights and its enforcement mechanisms can be found at Ohio Revised Code §3721.10, et seq.  As the statute makes clear, it applies to broad categories of nursing homes and skilled care facilities and provides broad protections to the residents of those facilities.  The Bill of Rights obligates the facility itself to protect the rights of its residents.  Those rights are spelled out in the statute and include the right to a safe environment and the right to be free from abuse, among other important rights.  O.R.C. § 3721.13. The statute allows the state to take enforcement actions but it also provides a private right of action.  As the statute states, “Any resident whose rights under sections 3721.10 to 3721.17 of the Revised Code are violated has a cause of action against any person or home committing the violation.”  O.R.C. § 3721.17(I)(1)(a).  The statute specifically allows residents and their families to seek injunctive relief as well as compensatory and punitive damages. O.R.C. § 3721.17(I)(1)(a). The Ohio Nursing Home Residents Bill of Rights is a powerful tool to help families seek justice.  Lawyers providing help to such families should consider its provisions when deciding how to proceed.

As reported on this blog previously, the White House, through executive action, has modified HIPAA, otherwise known as the “Privacy Rule.” The new guidelines can be found at the U.S. Department of Human Services.  For anyone attempting to secure a copy of their private health information (PHI), they should refer to these guidelines, as they will undoubtedly provide valuable insight. Some major media outlets, such as the New York Times, are heralding the HIPAA amendments as fostering the cost effective and timely production of a patient’s PHI.  “The Obama administration is tearing down barriers that make it difficult for patients to get access to their own medical records, telling doctors and hospitals that in most cases they must provide copies of these records within 30 days of receiving a request." Indeed, the changes to HIPAA should facilitate the cost effective and timely production of a patient’s PHI.  For instance, while the Privacy Rule allows covered entities (doctors, hospitals, nursing homes, etc.) to require that individuals request access in writing and requires verification of the identity of the person requesting access, a covered entity may not require an individual: Who wants a copy of his/her medical record mailed to his/her home address to physically come to the doctor’s office to request access and provide proof of identity in person? ·      To use a web portal for requesting access, as not all individuals will have ready access to the portal. ·      To mail an access request, as this would unreasonably delay the covered entity’s receipt of the request and thus, the individual’s access. Also, the Privacy Rule requires a covered entity to provide the individual with access to the PHI in the form and format requested, if readily producible in that form and format, or if not, in a readable hard copy form or other form and format as agreed to by the covered entity and individual.  In certain circumstances, the covered entity also may provide the individual with a summary of the PHI requested, in lieu of providing access to the PHI, or may provide an explanation of the PHI to which access has been provided in addition to that PHI. At what cost? The Privacy Rule permits a covered entity to impose a reasonable, cost-based fee if the individual requests a copy of the PHI (or agrees to receive a summary or explanation of the information).  The fee may include only the cost of: ·      Labor for copying the PHI requested by the individual, whether in paper or electronic form; ·      Supplies for creating the paper copy or electronic media (e.g., CD or USB drive) if the individual requests that the electronic copy be provided on portable media; ·      Postage, when the individual requests that the copy, or the summary or explanation, be mailed; and, ·      Preparation of an explanation or summary of the PHI, if agreed to by the individual. The fee may not include costs associated with verification; documentation; searching for and retrieving the PHI; maintaining systems; recouping capital for data access, storage, or infrastructure; or other costs not listed above even if such costs are authorized by State law. How long does a covered entity have to produce the records? In providing access to the individual, a covered entity (in most cases) must provide access to the PHI requested, in whole, or in part, no later than 30 calendar days from receiving the individual’s request.  If the information is archived offsite and not readily accessible -- the covered entity may extend the time by no more than an additional 30 days. Under certain limited circumstances, a covered entity may deny an individual’s request for access to all or a portion of the PHI requested.  In some of these circumstances, an individual has a right to have the denial reviewed by a licensed health care professional designated by the covered entity who did not participate in the original decision to deny What records are available to patients and/or their personal representative? Patients and/or their personal representatives are entitled to the PHI contained in an individuals’ "Designated Record Set" (DRS), which is comprised of the following: ·      Medical records and billing records about individuals maintained by or for a covered health care provider; ·      Enrollment, payment, claims adjudication, and case or medical management record systems maintained by or for a health plan; or ·      Other records that are used, in whole or in part, by or for the covered entity to make decisions about individuals.  This last category includes records that are used to make decisions about any individuals, whether or not the records have been used to make a decision about the particular individual requesting access. Note: an individual does not have a right to access protected health information (PHI) that is not used to make decisions about individuals.  For example, quality assessment or improvement records, patient safety activity records, or business planning, development, and management records are generally excluded from a DRS. When is your PHI not private? Importantly, there are two (2) categories of information are expressly excluded from the right of access are: ·      Psychotherapy notes, which are the personal notes of a mental health care provider documenting or analyzing the contents of a counseling session, that are maintained separate from the rest of the patient’s medical record. ·      Information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding. That being said, the HIPAA Privacy Rule permits a covered entity to disclose psychotherapy notes, when the covered entity has a good faith belief that the disclosure: ·      It is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others; and, ·      Is to a person(s) reasonably able to prevent or lessen the threat. 45 CFR 164.512 (j) To some mental health professionals, the fact that your PHI is not necessarily private is troubling.  “The practice of reporting a client to the police if they disclose abuse issues or other criminal behavior is one of the most serious and widespread rights violations we as consumers face today. The reason this practice has been allowed to continue is that the population of individuals who are mentally ill and who have confided in their provider that they have behaviors which may be criminal in nature are very unlikely to file complaints because the complaint process usually involves further disclosure of their private statements.”  In other words, many mental health professionals are concerned that individuals who may suffer from mental illness will not seek treatment because of a lack of privacy.  Only time will tell whether these concerns have substantial merit.  Nonetheless, consumers of mental health services should be aware of their rights before embarking on such treatment.

If you don’t have a garage or a remote starter, you need to let your vehicle run for a while to warm up and defrost the windows. So, sometimes when it is really cold and icy, it makes sense to go back in the house to wait and stay warm. In some states, the police refer to this practice as “puffing”.  The vehicle will have puffs of smoke coming out of the tailpipe and that is what the police look for when they see puffing. If you are not in your vehicle, while it is “puffing” you can possibly be fined. While not every state has a specific law against leaving a vehicle running while unattended, Ohio and West Virginia do have laws.  In 2004, the State of Ohio enacted a law that states, "No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the ignition..." The fine in Ohio is $150.  In West Virginia, the law states: “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway.   Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars; upon a second conviction within one year thereafter, shall be fined not more than two hundred dollars; and upon a third or subsequent conviction, shall be fined not more than five hundred dollars.” Now, anyone could get into the driver's seat, including children, and cause who knows what, either intentionally or accidentally.  Just as there can be civil and/or criminal liability for knowingly letting someone drive who is impaired or intoxicated, there is also a possibility for liability in being so reckless as to leave a vehicle unattended when running where anyone could get into it and begin operating it. While there are criminal laws against leaving a vehicle running while unattended, there is also a possibility for civil liability. Insurance coverage might not apply to a vehicle stolen because the owner left it running while unattended. This is something you need to check your auto insurance policy or ask your agent to find out for sure. Also, if anyone is injured or any property damage occurs as a result of someone operating the vehicle who should not have been, but was able to simply because it was left running may have a claim against the owner of the vehicle (or the person who left it running unattended) for negligence. In some cases, it could even be considered grossly negligent and could result in greater liability and even punitive damages. So, be aware of this law about leaving your running vehicle unattended in the states of Ohio and West Virginia.  Anyone could get behind the wheel of your vehicle and steal it while you leave it unattended with the keys inside and the car running . . .  it is just saying, “LOOK HOW EASY IT IS, GO AHEAD, STEAL ME.” NOW, THAT’S REALLY SOMETHING TO THINK ABOUT, ISN’T IT?

As I am sure most people reading this are aware, there was an intense and physical football game recently played between the Pittsburgh Steelers and Cincinnati Bengals. Pittsburgh’s star receiver, Antonio Brown, was ruled out against the Denver Broncos due to a vicious hit he took from a Cincinnati player named Vontaze Burfict.  Burfict is the same player who the Steelers accused of celebrating after Le’Veon Bell suffered a season ending injury and appeared to have intentionally kneed Ben Roethlisberger in the shoulder after tackling him. Jim Bordas and I were recently talking about the game, and Jim made the joking comment that the hit on Brown was almost criminal, which made me wonder if anyone has been prosecuted criminally based on their actions while playing a professional sport.  Some of the possible events that came to mind were a baseball player suffering a severe injury after intentionally getting hit by a pitch, a hockey player taking a fight too far, or even a fight similar to what happened between the Indiana Pacers and Detroit Pistons in 2004, which was nicknamed the “Malice at the Palace.” Based on my limited research, I found very few cases that have been filed against athletes for actions taken while they were playing a professional sport.  One story I found said, in 1969, Wayne Maki of the St. Louis Blues intentionally swung his hockey stick at Boston Bruins player Ted Green during a preseason exhibition game in Ottawa, which fractured Mr. Green’s skull.  Both players were involved in two fights during the relevant game and both were charged with assault after the game.  No conviction resulted from either case, but the Canadian court noted that sports were not immune from criminal prosecution. The first United States sports case I found was where a player was criminally prosecuted occurred in 1975.  In this case, Dave Forbes, who played for the Boston Bruins, knocked down a player on the other team and began to continuously punch the player in the back of his head.  Although this appears to be a clear case, Dave Forbes was acquitted on all counts. In my limited research, Todd Bertuzzi was the only person I found who actually pled or was found guilty based on an act that took place while playing professional sports.  Bertuzzi sucker-punched Colorado’s Steven Moore, which resulted in two broken vertebrae, a concussion, deep lacerations from when Mr. Moore was driven into the ice and stretching of the nerves in his neck.  Bertuzzi pled guilty to the assault charge after arranging a plea bargain with the prosecutors.  As a part of his plea, he was required to do 80 hours of community service and was on probation for one year, which actually prohibited him from playing in any hockey game that Moore was also playing in. Personally, I think an athlete knows what he or she is signing up for when making the decision to participate in a violent sport and any criminal punishment should be saved for only the extreme circumstances when an athlete goes well beyond the rules of the sport.  What do our readers think, should athletes be punished criminally when they cross the line? If so, what does crossing the line look like in a hard hitting game such as football?

There may be situations in which a person thinks that maybe they have a legal case, but are not sure, and call a lawyer’s office to ask for help in determining whether or not they have any claims they could pursue, and if so, how to pursue them. Sometimes a person may feel strongly that they have a case, but after speaking to a lawyer, realize that they do not actually have any viable legal claims. Then there are other situations in which a person knows that they have a legal claim, and is contacting a lawyer’s office to secure representation for that claim. So why then, do some lawyers still decline to take the case? There are several important reasons for potential clients to understand. There may be a conflict of interest. Say you got in a straight-forward, clear liability motor vehicle collision. The other driver ran a red light, and hit your vehicle. The police were called, the other driver was ticketed, you were taken to the hospital in an ambulance and your seriously damaged car had to be towed from the scene. Following several weeks of treatment, your back and neck pain are still not improving, and your doctor thinks that you will continue to need physical therapy and other treatment for the next few months. You have missed work, and have many medical bills to pay. The other driver’s insurance company is being uncooperative, and is refusing to pay any of your medical bills. You know you have a case, and you call a local personal injury firm about it, yet they inform you that they are unable to represent you. Even in a situation like this, where it is pretty clear that you have some viable claims against the at-fault driver’s insurance company, the law firm will not be able to take on your case if there is some conflict with the at-fault driver. If that driver is a former or current client of the firm, even for a case that is completely unrelated to the motor vehicle collision, the firm may not be able to represent you. Or say a doctor amputated the wrong leg, and the situation is clearly one involving medical malpractice claims against the doctor and probably the hospital, but the firm you call says they are not able to help you. If that doctor, or another individual who would be liable in the lawsuit, is the husband, daughter, or other close relative of a lawyer or staff member who works at the firm, this is another situation in which a law firm will likely decline to take your case, no matter how good it may be. Lawyers are often unable to provide a detailed explanation of why they must decline due to conflicts of interest, because of attorney-client confidentiality and other ethical rules, and will usually simply inform you that they are unable to represent you due to a conflict of interest. Though this may be frustrating, and you may wish for a greater explanation, oftentimes the lawyer is not able to provide one. This does not necessarily mean that you do not have a case, however, and you should contact another attorney’s office to see if they have no conflicts and can take on your case. Your claims may be outside of the applicable Statutes of Limitations. Some cases that may be very good legal cases cannot be pursued because the potential client has waited too long. Every state has statutes of limitations which provide a time period in which a case may be brought. These periods of time vary depending on the type of case, as well as the state in which the case would be filed. This is why it is important to contact a lawyer’s office as soon as you think you may have a legal claim. It is also important to have available any relevant dates when you call the lawyer for an evaluation. This may be the date on which a motor vehicle collision or workplace injury took place, a surgery date, or, in the event of many medical malpractice and nursing home cases, a series of dates of treatment and incident. Unfortunately, in many situations, if the applicable statute of limitations has run, there is nothing that a lawyer can do to help you, no matter how good of a case you may have had. However, there are some rules that may apply to the statute of limitations where the potential client has not yet learned of their legal claims until a later date. A lawyer can help determine if that applies to your potential claims, so it does not hurt to call a lawyer even if you think too much time has passed. Your claims may not be within the area of law in which the firm you have called practices. While many law firms offer a broad range of legal services, and take on a variety of different cases involving different types of legal claims, there are many areas of law, and even more different types of legal claims, and not every lawyer or law firm will work in all of those areas or claims. Some types of law, such as Social Security, employee benefits, or worker’s compensation, involve detailed administrative and statutory regulations with which every lawyer may not be intimately familiar. In such situations, you will want to contact an attorney who has experience working within these areas, to help evaluate your situation and guide you through the process of pursuing those claims. Some firms who handle primarily criminal law cases will decline to take on a civil matter, even where it is related to the criminal case, and vice versa. Many lawyers or law offices practice exclusively in one type of law, such as family law, which would cover legal situations such as divorces and custody disputes, and will decline to represent clients in other matters, simply because this is beyond the focus of their practice. Other offices may assist with estate work from time to time, where it is necessary to pursue claims on behalf of a deceased person, such as in some medical malpractice or nursing home negligence cases, but are not able to assist a client with detailed estate planning or tax work. Again, simply because that particular lawyer or law firm declines to represent you in your claims, it does not necessarily mean that you do not have viable legal claims. Oftentimes in these situations, the lawyer who is declining your case will explain that your claims fall within an area of law beyond the scope of their practice, and may suggest you contact an attorney who advertises that they practice in that particular area of law. There may also be situations in which you have multiple legal claims, some of which the lawyer can assist you with, and others for which they would direct your call elsewhere. No matter the outcome, calling a lawyer’s office for an evaluation is the best way to determine what legal claims you have, and whether that firm can assist you with them. Regardless of whether the lawyers at Bordas & Bordas are ultimately able to take on your case, we are always here to listen to your situation and provide a free consultation of any potential claims you may have.