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Archive for April, 2013

Improving Physicians’ Bedside Manner: Saving Hospitals Dollars because it Makes Cents

Posted on: April 25th, 2013

By: William Ezzell

Recently, the Wall Street Journal reported on efforts by health care providers and educators alike to improve ways doctors communicate with patients. Following the scrutiny and reform of the health care industry over the past few years, many areas that previously received minimal attention have undergone significant review and innovation, including physicians’ bedside manner.

According to the Wall Street Journal, various studies concluded that breakdowns in doctor-patient communication significantly increase provider costs: roughly 40 percent of medical malpractice lawsuits allege wrongs in communication, namely informed consent. When physicians don’t listen to patients, they also miss critical cues, misdiagnose illnesses, and poor communication often leads to patients failing to follow orders after discharge. The costs also arise in the regulatory arena. Last year, Medicare began decreasing reimbursements to hospitals based on patient surveys, where patients rate how well doctors communicate information and the responsiveness of hospital staff. Low scores translate to reduced reimbursements.

Here in the Atlanta area, these alarming realities have already sparked efforts by providers and educators to reevaluate approaches to bedside manner. WellStar implemented new training for all physicians, emphasizing small issues such as teaching physicians to ask permission to enter rooms and explain what they are doing (and why) throughout the procedure. Similarly, Emory University revamped its curriculum a few years ago, assigning students to advisers who ensure communication topics are taught throughout medical school.

No matter how experienced the physician or professional, the new data and regulatory schemes necessitate that providers implement methods to continuously improve communication with patients. This could potentially save lives and indisputably reduces costs across the entire health care spectrum, in turn saving hospitals dollars, because it makes sense.

NLRB Provides Guidance on Investigation Confidentiality Policies

Posted on: April 22nd, 2013

By: Anthony Del Rio

In July 2012, the National Labor Relations Board (“NLRB”) ruled that a blanket policy requiring confidentiality during all internal workplace investigations violates employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The ruling represented a somewhat conflicting position, because one of the primary reasons confidentiality provisions were put in place was to protect employees and witnesses from retaliation.

This past week, the NLRB released an a memorandum that provides guidance on what it considers permissible confidentiality policies in workplace investigations. The NLRB’s memo suggests that, rather than using language that requires all investigations mandate confidentiality, policies should use the following language:

[Employer] may decide in some circumstances that in order to [protect the integrity of an investigation and to protect witnesses from harassment/retaliation], we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Confidentiality in employer investigations is key in order to protect both the employer and the employee. For that reason, a confidentiality provision that has actual force to it is necessary. However, at the same time, avoiding the scrutiny of the NLRB is also very important. For that reason, employers should consider reviewing and modifying their current policies to conform with the language suggested in the NLRB’s memorandum.

Furthermore, as we suggested in our prior coverage of this issue, before prohibiting employees from discussing pending investigations, employers must consider whether there is a real need for confidentiality based on risks of witness coercion, destruction of evidence, or other legitimate business concerns. Blanket prohibitions against discussion of internal investigations without this type of individualized assessment will likely violate Section 7 of the NLRA.

Does the Fourth Amendment Allow for a Forced Blood Draw after a DUI? – Part II

Posted on: April 22nd, 2013

By: Sun Choy

In a previous post, I posed this question in light of the oral argument in Missouri v. McNeely. This week, the Supreme Court answered by holding that requiring a warrant under the Fourth Amendment “must be determined case by case based on the totality of the circumstances” confronting the officer. In doing so, the Court rejected the government’s bright-line test in favor of the familiar “totality of the circumstances” test. The Court was aware of the different levels of technology available to officers across the county and noted that “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency.”

What I take away from this decision is that officers must be able to articulate a “plausible justification” for failing to obtain a warrant before drawing blood. If the evidence shows that the particular warrant process of the jurisdiction would not have “significantly increase[d] the delay before the blood test,” the Fourth Amendment would be violated.

State Legislature Enters the Unfamiliar Realm of Regulating Legal Practice and Passes Laws Prohibiting Assignability of Legal Malpractice Claims

Posted on: April 18th, 2013

By: Dana Maine and William Ezzell

Following last month’s unanimous opinion from the Georgia Supreme Court that legal malpractice claims were not per se unassignable, the State Bar of Georgia successfully implemented a counterstrike aimed at barring the assignment of all legal malpractice claims. The case, Villanueva v. First American Title Insurance Company, involved a legal practice claim against a closing attorney in a mortgage refinance transaction. [E-Alert: Stranger Danger: Georgia Joins Minority View and Allows Assignability of Legal Malpractice Claims]. The Georgia Supreme Court held, but for actions in personal injury, all claims, including those for legal malpractice, were assignable.

The aggressive, albeit quiet, lobbying efforts of the State Bar resulted in the passage of House Bills 160 and 359, relating to foreclosed property registries and the disposition of unclaimed property, respectively. In Georgia, lawmakers are permitted to add unrelated provisions to legislation so long as the provision applies to the same code section the legislation addresses. Thus, in an apparent attempt to maximize the chances of the provision’s passage, each Act included identical provisions amending O.C.G.A. § 44-12-24, governing the assignability of legal claims involving property.

House Bills 160 and 359 provide:

Except for those situations governed by Code Sections 11-20-210 and 11-9-406, a right of action is assignable if it involves, directly or indirectly, a right of property. A right of action for personal torts, for legal malpractice, or for injuries from fraud to the assignor may not be assigned.

The Georgia Legislature passed both measures almost unanimously, and the bills are currently awaiting Governor Deal’s signature. Georgia requires the Governor sign any legislation into law within 40 days from March 28, 2013, and while the Governor has yet to publicly comment on the bills, it is widely expected that the Governor – an attorney – will sign the legislation into law. Once signed, the legal malpractice provisions will become effective immediately. Copies of each bill are available here and here

Final passage of the laws should curb the concerns of insurers and Georgia lawyers alike. Most pressing are the malpractice policies currently necessitating implementation or renewal. Assignable legal malpractice claims would have required insurers to raise premiums significantly, perhaps as high as 25 percent. From a more strategic vantage point, insurance carriers’ fears of the creation of a secondary market for LPL claims should be assuaged. The Georgia Legislature recognized the danger for all interested parties from the holding in Villanueva – an increase in the pool of risk for insurers – and acted decisively without any ambiguity, due in no small part to the State Bar.

While this legislation solves the problem for Georgia lawyers, LPL carriers must recognize that there may be unwelcome impacts from Villanueva. The decision of the Georgia Supreme Court fell within a clearly defined minority of jurisdictions that concluded legal malpractice claims are assignable. In reaching the decision, the court provided a comprehensive survey and analysis of courts nationwide regarding the policy implications of majority and minority stances on assignability. Although the court explicitly refrained from incorporating any public policy in the holding, the case has already garnered national attention and will undoubtedly be used by claimants arguing for assignable LPL claims in future appellate litigation in other jurisdictions.

SCOTUS Rules Employers May “Pick-Off” FLSA Plaintiffs

Posted on: April 18th, 2013

By: Anthony Del Rio

The U.S. Supreme Court has issued its opinion on a case regarding whether an employer may “pick-off” the named plaintiff in a Fair Labor Standards Act (“FLSA”) collective action. The Court ruled 5-4 in favor of the employer, which means that employers may be able to use a Rule 68 offer of judgment to short-circuit FLSA collective actions in the future.

The case, Genesis HealthCare Corp. v. Symczyk, involved an employee that filed a FLSA wage and hour claim intended to be a collective action. The defendant made a Rule 68 offer of judgment that would have given the plaintiff everything she could possibly have obtained through the lawsuit (all alleged damages and attorneys’ fees), effectively mooting her claim before any other employees joined the collective action. The plaintiff did not accept the offer before the prescribed deadline, and the defendant moved to dismiss. The district court dismissed the case, because it was moot as to the only plaintiff. However, the Third Circuit Court of Appeals, while acknowledging the individual’s claim was moot, was persuaded by the plaintiff’s argument that it was a litigation tactic to “pick-off” the lead plaintiff and reversed the district court’s ruling.

The Supreme Court sided with the district court. The holding now provides solid ground for employers to attempt to moot collective actions before they start. However, the majority did not hold that an unaccepted Rule 68 offers will always moot a plaintiff’s FLSA claims, because that issue had not been appealed. Unfortunately, there is conflicting case law regarding whether an FLSA claim is mooted by an unaccepted offer of judgment. Nonetheless, the Supreme Court has provided employers with what may be a very useful tool in defeating FLSA collective actions.

The opinion is available here: