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This blog is part of a series - for part 3, click here. Earlier in this series, we discussed the nuts and bolts of negligence law. Generally, the law imposes a duty of reasonable care in our day-to-day activities. Negligence is a breach of that duty. If someone is injured by another’s negligence, the law of negligence provides a means of compensating for those injuries. Medical malpractice is a subset of negligence. Especially in the last 25 years, the subject of medical malpractice has become a politically charged one. In most states, there are now special rules that must be followed in order for a medical malpractice case to be filed and prosecuted. These rules are complex and are being constantly evaluated and revised. This blog is not meant to summarize the law of medical malpractice, but to give a broad overview of how these rules make medical malpractice cases unique. The one thing is that most states require some kind of screening before a medical malpractice case can be filed. Unlike an ordinary negligence case, someone intending to bring a case for medical malpractice must certify to the court, usually by affidavit, that a qualified expert has reviewed the case and found that it probably has merit. This process is followed in West Virginia, Ohio, and Pennsylvania. Medical malpractice cases also follow special rules for determining whether or not a physician is negligent. The party making the claim must prove through expert testimony that the malpracticing physician violated the applicable standard of care and that his violation actually caused the injury. Experts play a vital role in medical malpractice cases. The expert must satisfy a strict set of requirements before he can testify. For example, the expert must practice in the same field as the malpracticing physician. Depending on the state, it may also be necessary for the expert to be board-certified and/or for the expert to show that a certain percentage of his professional time is devoted to seeing patients. Because of the complex nature of medical malpractice cases, it is also common for states for require an early pretrial conference. This helps to ensure that the court is managing the case effectively. Typically, there are also timelines that have to be met so the case progresses to trial. There may also be provisions requiring the parties to participate in mediation in an effort to resolve the case without the necessity of a trial. Next time we’ll take a look at “tort reform.”

As we have seen, torts are meant as a legal remedy for private wrongs. Negligence is the tort we encounter most often in our daily lives. We also took a look at product liability, premises liability, and intentional torts. This week we take a look at strict liability. Typically, tort law won’t provide a remedy unless the wrongdoer has breached a duty of reasonable care. But there are situations where the law does not require a showing of negligence or any other breach. Where the conduct is considered to be abnormally dangerous, someone may recover simply by showing that the conduct was, in fact, the cause of their injuries. Justice Neeley famously explained the policy behind the strict liability rule: “Where, for example, the defendant has elephants parachuting onto his farmland to entertain his family, he is acting for his own purposes, and is seeking a profit or benefit while creating an abnormal risk. Should the elephant's landing not be on target but rather on my roof, then I would be confounded if it were required that I prove either a negligent pilot or a defective parachute. That would be tantamount to asking about the negligence of the elephant. controls and clearly tells us where the liability lies.” Peneschi v. National Steel Corp., 170 W.Va. 511, 515, 295 S.E.2d 1 (1982) There are many real-life applications of the strict liability rule. The earliest cases applied strict liability to the above ground storage of water or anything else that was “likely to do mischief it escapes.” Through the years, the rule has been applied to many other situations that are inherently dangerous including blasting operations, keeping wild animals, storing explosives or flammable liquids, crop dusting, transporting acids or other corrosives, and disposing of certain kinds of chemical waste. As new technologies are developed, the scope of strict liability will most certainly continue to expand—providing relief whenever the benefits of the activity are greatly outweighed by the potential for injury or death. In the next installment, we’ll turn our focus to medical malpractice.

As we all know, car accidents happen on a daily basis due to a variety of reasons, but most commonly that reason being human error. However, with the rise of technology has come the self-driving car. This product, although still in the testing phase, has claimed to be the new-coming of a better means of driving as these vehicles are alleged to take out the human error associated with driving and in place, have a system that lacks distraction and negligence. Regardless of these intentions however, the use of the self-driving car is sure to bring forth a new set of legal issues and a niche in the law in which many attorneys may find themselves practicing. Additionally, the question then comes – how will the law be developed in this regard? Will new laws be set forth which govern accidents involving self-driving cars? Will self-driving car accidents be premised on negligence or products liability suits? Only the time will tell. However, what we have seen so far in regard to these self-driving cars that are being developed is that they are far from perfect. For example, a tragic accident occurred with an Uber self-driving vehicle on March 18, 2018 in Arizona. News reports state that on this date, a woman was walking across the street with her bicycle at which time an uber self-driving vehicle, traveling autonomously, although with a human “safety driver” inside, tragically struck the pedestrian. More recent reports show that the accident is believed to have occurred because Uber’s software in the vehicle that would have prevented the vehicle from striking the woman “was tuned in such a way that it ‘decided’ it didn’t need to take evasive action, and possibly flagged the detection as a ‘false positive’. The reason a system would do this, according to the report, is because there are a number of situations where the computers that power an autonomous car might see something it thinks is a human or some other obstacle. Uber reportedly set that threshold so low, though, that the system saw a person crossing the road with a bicycle and determined that immediate evasive action wasn’t necessary.” Sean O’Kane wrote in a May 7 th article. Accordingly, it appears from reading these reports that such an accident was caused by a defect in Uber’s software; however, these reports also state that the “safety driver” in the vehicle was also looking down at the time of the incident thus failing to prevent the accident as well. Thus, the question then arises, who is responsible for such an accident? Uber, the safety driver, the manufacturer of the vehicle? As self-driving vehicles become more prevalent it’s likely that all of these issues will be thoroughly discussed and argued, and further, that this area of the law will continue to emerge.

In my blog from May 10, we covered a few of the most common torts. We saw that torts are private wrongs for which a private remedy is provided, usually in the form of monetary compensation. Negligence is the best-known tort and the one we encounter most in our daily lives. Product liability and premises liability are torts that are also fairly common. But there are other torts we should probably know and recognize. Intentional torts cover a wide range of conduct. In negligence cases, the issue is whether someone violated a duty of care.  Intentional torts are concerned with violating someone’s personal rights or dignity. For example, the law recognizes that everyone has the right to be free from unwanted touching. If someone violates that right – by, say, intentionally throwing a punch – the offender has committed a battery and is liable for damages. The law also recognizes the right to freely possess and use one’s property. Intentionally interfering with that right is known as conversion. As Shakespeare famously said, we also have a right to our good name and reputation. If someone intentionally publishes falsehoods about us that damage our reputation, the law provides a remedy through the tort of defamation. Oftentimes, conduct amounting to an intentional tort may also be a crime. That’s perfectly ok. Obviously, the government has an interest in prosecuting crimes to promote the public good and to punish wrongdoers. Tort law, however, is meant to give victims a means of recovering compensation for the losses they may have suffered. Another tort that is the spotlight today is known as nuisance. This tort is being used more frequently in Ohio and West Virginia with the expansion of Marcellus gas drilling. Basically, nuisance involves an unreasonable use of land that interferes with another landowner’s enjoyment of his own land. Suppose a gas company drills a well near a residence, and the light, soot, and constant noise are interfering with the resident’s homelife. Nuisance law could provide a remedy under those circumstances. I’ll have more to say about tort law in my next blog.

What exactly is a “tort”? Most of us have a pretty good understanding of what criminal law is. Criminal law always involves wrongs that are committed against the values and norms of society. Therefore, a criminal case is always initiated by the government. If you are found guilty of a crime, you may be imprisoned or required to pay a fine. Tort law is a way of providing a remedy for personal wrongs – conduct that causes injury, damage or loss to another person. The government is not involved. Instead, the law authorizes the injured party to sue the wrongdoer directly and to recover a sum of money to compensate for the injury. The most common form of tort is negligence. Basically, negligence is failing to act reasonably under the circumstances. We usually think of cases involving car wrecks, but negligence is meant to cover almost every aspect of life. Hospitals can be negligent in providing care or hiring physicians to their staff. Architects can be negligent in designing buildings. Accountants can be negligent in auditing the books of their customers. Wherever there is the potential to cause harm through neglectful or unreasonable conduct, you’ll find the law of negligence. Tort law also covers what is known as premises liability. Generally, the owner of a business or any other property that’s open to the public owes a duty of reasonable care to those who enter. Even private property owners must exercise reasonable care to protect the safety of guests and others who are invited onto the property. If you violate this duty of care, you may be liable for any damages resulting from your lack of care. Another kind of tort is known as product liability. Those who manufacture, distribute or sell a product to the public can be liable if the product causes injury. In product liability cases, the focus shifts from the conduct of the parties to the product itself. Every product has some potential to cause harm. The question in a product liability case boils down to this. Was the product reasonably safe for its intended use? These can be complicated cases, requiring the jury to consider all of the risks and benefits associates with the product. If the jury finds that the product was not reasonably safe, then damages can be awarded. We’ll cover more torts in the next blog.

Did you know? May 1 is Law Day! While it seems as if there is a new “holiday” to celebrate each day (i.e. national margarita day, national pizza day, national siblings day, etc.), for more than 50 years May 1 has been recognized as the day we celebrate Law Day in the United States. Law Day reaffirms our commitment to the rule of law. It recognizes the importance of our legal system as well as its contributions to our society. Law Day was first established by President Dwight D. Eisenhower in 1958. On February 3, 1958, President Eisenhower issued the following Proclamation: On April 7, 1961, Congress passed a Joint Resolution officially designating May 1 as Law Day in the United States.  The Joint Resolution states that the President must issue a “Law Day Proclamation” each year.   Therefore, every President since President Eisenhower has issue an annual Law Day Proclamation.  For an example of a more recent Proclamation, you can see President Barack Obama’s 2009 Law Day Proclamation here. Bar associations, courts and various other organizations hold events each year in celebration of Law Day.  This year, the Belmont County Bar Association will be holding a luncheon for attorneys and judges in the Ohio Valley.  What ways will you be celebrating Law Day this year?

Insurance Companies are obligated under the law to handle and deal with insurance claims in “good faith.” In West Virginia, there are certain statutes that govern the obligations and responsibilities of insurance companies in handling claims under their own policies. Specifically, the West Virginia Unfair Trade Practices Act lists a number of obligations on the part of insurance companies in handling various insurance claims, and further, details what constitutes a violation of West Virginia law during the insurance company’s handling of these claims. W. Va. Code § 33-11-4(9). Moreover, the West Virginia Insurance Commissioner has set out several regulations that complement the West Virginia Unfair Trade Practices Act and provides in more detail what conduct constitutes a violation of the WVUTPA. Under the WVUTPA, “No person shall commit or perform with such frequency as to indicate a general business practice any of the following.” The Statute then goes on to list a number of actions that are considered to be inappropriate conduct on the part of an insurance company. The below are examples of this list: Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies; Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; Refusing to pay claims without conducting a reasonable investigation based upon all available information; Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by the insureds, when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered; Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application; Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured; Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which payments are being made; Delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; Failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; and Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement. In sum, it is important to be aware of your rights and the obligations of your insurance company throughout the claims handling process. If you believe your insurance company is treating you unfairly, consult with an attorney about your options.

Most of you who read the Bordas Blogs on a regular basis will recall that I am actively involved with the West Virginia Child Advocacy Network, more generally known by its acronym, WVCAN. I currently serve as WVCAN President and have been a member of the Board of Directors for over four years. Last week, I participated in yet another event that reminded me of how very important the mission of WVCAN is in the protection of the most valuable resource in our state: our children. Erin Merryn is a young woman who was subjected to horrible sexual abuse between the ages of 6-8, and again between the ages of 11-13. As an adult, Erin recognized that during her childhood years, she had never been taught about sexual abuse. Her classmates had not been given age-appropriate techniques to recognize child sexual abuse, nor to report those signs to a trusted adult. Teachers and other school personnel had not been specifically trained to recognize signs of an abused child. Parents had not been given information to help them recognize warning signs of child sexual abuse. Recognizing that such training may well have saved her from years of nightmarish abuse, Erin set out to make a difference. In 2009, Vermont became the first state to mandate child sexual abuse prevention programs in its schools, all because of Erin’s efforts. Today, 32 states – including West Virginia – require such education. Three years ago, working along with WVCAN Executive Director Emily Chittenden-Laird, I helped to draft legislation that created a task force to study the issue of child sexual abuse in WV, and to fashion a program aimed at educating and empowering children and adults alike to recognize the signs of abuse; and to take appropriate steps to have it stopped. Last week, I stood in the Governor’s Conference Room in Charleston as Governor Jim Justice added WV to the list of states that have approved and implemented Erin’s Law. Erin’s Law was approved in WV first because of the effort and determination of Erin Merryn to ensure that no child ever again has to endure the horrors that she suffered in her youth. She is the champion of the legislation, and no one could credibly argue to the contrary. There are, however, other champions in each state that should not be forgotten. WVCAN made this legislation a priority. Our lobbyist, Ben Beakes, made certain that the bill stayed on track, in the forefront of the minds of legislators. Our executive director, whose energy, compassion and commitment never cease to amaze, made sure she was available on a moment’s notice to travel to the capitol to meet with senators and representatives who had questions or concerns.  She was armed to the teeth with facts, figures and studies to support the critical need for this legislation. (One in every 10 children in WV will be the victim of sexual abuse by their 18 th birthday. One in every 10. You probably were not aware of that fact. Neither were most of our legislators.) After all was said and done – after all of the meetings and hearings and proposed amendments and conferences – the bills passed both the senate and the house. Unanimously. West Virginia’s children are safer now than they were a month ago. The tireless efforts of Emily Chittenden-Laird and Ben Beakes will save WV children from experiencing sexual abuse and will rescue others from that horror. One of my favorite sayings is, “No person stands so tall as when she stoops to help a child.” Emily and Ben are human skyscrapers.

Attorneys, like many other professionals, need to be licensed to practice in a particular jurisdiction. Generally, the jurisdiction will be a state. Attorneys generally gain admission to practice in a state by graduating from law school, passing the Professional Responsibility bar exam, and practicing the bar exam administered by the state in which they seek to be licensed and practice. There are other means of admission for attorneys who have been in practice for a number of years and are in good standing with the bar where they may apply for admission to another state through paperwork instead, and some states will allow reciprocity admissions, whereby if the attorney may be admitted if they have passed the bar in a state where reciprocity is permitted. Admission to a particular state allows that attorney to practice in the courts within the state. Separate admission to federal courts can then be sought as well. However, circumstances arise where an attorney may be called upon to participate in a case that is pending before a court in a state where that attorney is not licensed. For example, an attorney who is licensed in West Virginia and practicing law at a firm in the state of West Virginia may be asked to work on a case that the firm has received that is proceeding through a court in Pennsylvania. While the West Virginia attorney can do all kind of legal research and other important work on the case without a Pennsylvania license, in order to attend court hearings, depositions, or other formal proceedings in that case, that attorney would need a Pennsylvania license. Because it is usually impractical for an attorney to obtain a license in another state for just a case or two, the courts permit a process where an attorney licensed and in good standing in another state may be admitted “ pro hac vice” to practice before their court in a particular case. Pro hac vice essentially means “for this occasion only.” In general, for a lawyer to be admitted to practice pro hac vice on a case, they must enter into an agreement with a lawyer who is licensed in the state where they seek to practice to be admitted under that lawyer’s bar license and to learn and abide by all of the rules of the state where they seek this temporary admission. In the case of the West Virginia attorney seeking to practice on a case in Pennsylvania, a Pennsylvania attorney would have to sign formal court documents vouching for the West Virginia attorney’s good standing and ability to learn and comply with West Virginia court rules and laws, and that they will assist the West Virginia attorney in doing so. The Pennsylvania attorney would also agree to attend any formal proceedings along with the attorney gaining pro hac vice admission. A court in Pennsylvania would have to approve the pro hac vice admission, and enter an order stating that admission, which will last only for that particular case. If the attorney who has been admitted to practice pro hac vice on a case violates some rule of law or ethics, the state in which they have received pro hac vice admission is able to take disciplinary action. The specific rules of pro hac vice admission may vary from one jurisdiction to another, but if you see an out-of-state lawyer’s name appear on a case, they may very well be participating as a pro hac vice admission.

The traditional physician-patient relationship begins when a patient seeks care from a doctor, and conversely, the doctor agrees to render care to the patient. Throughout history this has been the basis of the physician-patient relationship, a face-to-face interaction between both parties that implicates a doctor’s duty to a patient, and ultimately the applicable standard of care owed to that patient. However, with the rise of technology, this traditional physician-patient relationship has grown to be quite complicated. In 2018, medical providers may be responsible for your care in a “non-traditional” sense. Specifically, when we look at the growth of technology in the medical field it’s apparent that the physician-patient relationship is continually evolving. For example, there are now several electronic health portals in which patients can directly access not only their medical records, but also their doctor directly for medical advice via their cell phone, tablet, or computer. Essentially these tools make up the “secure patient portal.” These portals are essentially sites that compile all of the patient’s health information and allow patients to ask their doctors questions, schedule appointments, and request prescription refills. Although these portals have been praised by some as they allow for greater accessibility of physicians, and can also promote the patient’s ability to affirmatively take part in their health, there are still associated risks that often leave the patient portal “unsecure.” These risks primarily stem from the use of electronic health portals via phones and portable electronic devices such as tablets, as these devices lack the security that has been instilled on hospital computers and may be accessed by experienced hackers who are skilled at undermining our electronic devices. Nonetheless, there are laws and guidelines that regulate this technology. Specifically, with the implementation of 45 C.F.R. §164.312(e)(1), was a requirement to “mplement technical security measures to guard against unauthorized access to electronic protected health information that is being transmitted over an electronic communications network.” These precautions have been in existence since the rise of electronic communication as it relates to medical information, however, with the sophistication of online hackers as well as technology in general, patients, doctors, and hospitals are at risk when they take part in this wide technological network. More specifically, with the use of cell phones and tablets, doctors and patients may both be rendering themselves vulnerable to the distribution of private health information. Further, the use of these electronics may be risky in a less technical sense in that if a physician or patient’s phone or tablet is misplaced or even stolen, a wide variety of personal information may be placed in the hands of the wrong person. Accordingly, it is as important as ever to take all measures necessary to keep this information private when utilizing the newest form of technology, especially in light of the ongoing security breaches in various institutions across the United States.

With recent events returning the never-ending debate over “gun control” back to the headlines, it occurs to me that this would be a good opportunity to provide folks with a basic (and I mean very basic) primer on constitutional law and its application. Thus, I offer the following. For purposes of this article, I’m going to limit my discussion to rights conveyed by the various amendments to the United States Constitution. Those rights, such as freedom of speech, freedom of religion, the right to a trial by jury, and the right to keep and bear arms are familiar to pretty much everyone. What people don’t seem to understand, however, is that our Supreme Court has consistently held that even the most basic of our constitutional rights can be subject to regulation or restriction. “Pardon me”, you say? “You’re telling me that constitutional rights can be restricted?” The answer is a very clear yes, although the standards that apply in such situations are difficult to meet. Over the years, the U.S. Supreme Court has identified certain constitutional rights as “fundamental”. I won’t give you an exhaustive list of the rights that are within that group, but I can tell you that freedom of speech, the right of privacy, and the right to keep and bear arms all have been found to fit the definition of a fundamental right. In order to restrict such a right, the government has to demonstrate that it has a “compelling state interest” which the proposed restriction seeks to protect. For instance, in the case which legalized a woman’s right to obtain an abortion, the Supreme Court held that a woman’s right to privacy (a fundamental right) outweighed the claimed “state interest” in protecting the health of pregnant women in the first trimester of pregnancy. Similarly, the Court has also held that the compelling state interest in protecting children from exploitation outweighs the constitutionally-established right of freedom of speech. Thus, possessing or transmitting child pornography is illegal. Even the Second Amendment itself has been limited, in ways that very few folks would question. The amendment provides that the right “of the people” to keep and bear arms is protected. No exceptions appear to limit which “people” the framers of the Constitution had in mind when they crafted this amendment, yet many such limitations exist, apparently without a lot of debate. A convicted felon is not only prohibited from possessing a firearm; he is subject to arrest and imprisonment if he has one. A person who has been adjudged to be mentally ill is also prohibited from purchasing a firearm, as is a person who has been convicted of domestic violence. Where in the Second Amendment do those qualifications on a fundamental constitutional right appear? The answer is nowhere. They don’t exist, yet few of us question whether they are appropriate. The same can be said of fully automatic weapons. Nowhere in the Second Amendment do we find a limitation on the types of weapons that citizens are permitted to own, yet possession of such a weapon is illegal. In writing this article, I am certainly not trying to persuade the reader in one direction or another in terms of the gun control debate. I simply am trying to help people understand that even a right which appears in our Constitution is subject to regulation and restriction under the proper circumstances. If the government has a compelling interest it is seeking to protect, and the fundamental right the government seeks to restrict is fairly and narrowly regulated by the law in question, the restrictive law may be upheld by the courts. The question is not simply whether or not a constitutional right exists; the proper question is whether or not the state has a sufficiently compelling interest to justify restriction of that fundamental constitutional right. A very, very basic explanation of an extremely complex area of the law. I hope you find it to be informative, if not useful.

Gone are the days when wedding planning involved calling the best bakers in your family to put together that wedding cake or hiring your old friend from college to act as the DJ on your big night. In 2018, the wedding business industry is one of the fastest-growing businesses and if successful, can be a profitable way to make a living. With that being said, hiring a vendor for your wedding day, whether it be a photographer, caterer, etc., comes with more obligations than may meet the eye. First, your vendor will likely have a contract for you to read that can list many details such as how much they charge for their services, when those invoices must be paid, and many other particularities that one may overlook in all the excitement of the wedding planning process. Some vendors may require that they be used for a certain amount of time, others may provide that in the event of bad weather or some other unexpected circumstance, that they may cancel the contract at the last minute. These are all details that may seem insignificant months from the big day, but as with all things of importance, it’s always a great idea to take your time and read through the details. Although signing a contract to hire someone to work with you on your wedding day such as a hairdresser or a photobooth operator may not seem like a big deal – it’s important to know what your obligations and rights are under any contract you sign. If you don’t understand a provision or you are uncertain that it applies to you – ask your vendor to explain so there are no unexpected surprises. Happy planning!