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Archive for October, 2013

New Jersey Appellate Court Holds a Person has a Legal Duty to Avoid Sending Text Messages to Drivers Under Certain Circumstances

Posted on: October 31st, 2013

By: Abby A. Vineyard

The Superior Court of New Jersey, Appellate Division recently held that, under certain circumstances, a person has a legal duty to avoid sending text messages to the driver of a motor vehicle.   Kubert v. Best, No. A-1128-12T4, 2013 WL 4512313, at *1 (N.J. Super. Ct. App. Div., Aug. 27, 2013).  On September 21, 2009, teenaged driver Kyle Best was exchanging text messages with fellow teenager Shannon Colonna while Best was driving.  Best crossed into the opposite lane of travel and struck David and Linda Kubert.  The Kuberts settled their claims against Best but contended that Colonna was responsible because she was “electronically present” in Best’s vehicle.  Id. at *1-2, 5.

The Court was swayed by the Kuberts’ argument but put limitations on the liability of a remote text message-sender.  It held that a person sending text messages to a driver (from a remote location) can be liable to someone who is injured as a result of the driver’s distraction, but the plaintiff must prove the sender “knew or had special reason to know” the driver would be distracted by looking at the text message while driving.  The Court emphasized it is not enough to show the sender knew that the recipient was driving.  Rather, the sender must have had “special reason” to know the recipient would read the text message while driving.  Id. at *7, 9.  The Court did not provide examples of what evidence would be sufficient to prove that a remote sender had special reason to know the driver would read a text message immediately upon receipt.

The Court affirmed summary judgment for Colonna because the Kuberts did not produce sufficient evidence that Colonna knew or had reason to know Best was driving, much less that Best would read her text messages while driving.  It based its decision on (1) Colonna’s testimony that she habitually sends more than 100 text messages per day and did not know Best was driving at the time of the collision, and (2) Best’s cell phone records showing he initiated the text message conversation as he got into his vehicle and sent the last text message (approximately seventeen seconds) before the collision.  Id. at *2-3, 11.

Although Georgia’s laws on cell phone usage while driving are more relaxed than New Jersey’s, this case serves as a warning to those who knowingly exchange text messages with someone who is driving.

Contractor Forced to Protect Workers Who Voice Quality/Safety Concerns

Posted on: October 24th, 2013

By: Kamy Molavi

A construction contractor involved in the expansion of Georgia Power’s Plant Vogtle nuclear power plant in Waynesboro, Georgia, has agreed to take measure to correct conditions that the Nuclear Regulatory Commission characterized as “a chilled work environment for raising and addressing safety concerns.”

As part of an agreement with the NRC, the contractor, CB&I, committed to address those conditions. The agreement resulted from the settlement of two alleged employment discrimination violations by the previous owner of a plant now owned by CB&I. An NRC investigation concluded that 27% of the workers at the plant feared retaliation for raising concerns over quality.

The measures that CB&I agreed to implement reportedly include updating its work-environment policies, providing employee-protection training for supervisors and staff, ensuring independent review of proposed adverse actions against employees, and performing safety-culture assessments of nuclear-related operations. For more details and the ENR source article, click here.

Lying to Medicare about Diagnostic Results: Go Directly to Jail. Do Not Pass Go. Do Not Collect Reimbursement.

Posted on: October 15th, 2013

By: William Ezzell

Physicians practicing under Medicare may soon be reminded, “ignorance is bliss.” The evolution of medical technology has undoubtedly aided in the ability to diagnose conditions with greater certainty, and notably, increased detail. Yet, in an industry largely based on third-party payers and federal regulation, the increased knowledge new technology brings is potentially catastrophic.

As discussed here, the Department of Justice recently agreed to a plea agreement with a cardiologist where the physician is now serving a prison term of thirty to thirty-seven months. The cardiologist, working for St. Joseph’s Hospital in London, Kentucky treated a patient for an arterial blockage. The cardiologist reviewed the angiogram (imagery showing blockages in blood vessels around the heart), and noted a lesion in an artery as 70% blocked. Problem was, while there was indeed a block, the blockage was actually far less and the cardiologist was aware of this fact. However, if the cardiologist documented the blockage according to its actual level, Medicare would not have deemed the corrective procedure as “medically necessary” and would thus have denied reimbursement.

The cardiologist at St. Joseph’s is not alone – two other cardiologists suffered similar fates for the kind of conduct, and this problem is not limited to cardiology. As highlighted by the article, oncology could be next. Physicians want to try everything to beat cancer, and physicians often find success for certain patients when deviating from standard chemotherapy protocols. Physicians and hospitals be aware: altering the actual chemotherapy orders in order to ensure Medicare coverage has and can result in prison. The issue creates a moral dilemma that may be irreconcilable. However, at a minimum, this cautionary tale affords hospitals and physicians notice. Medical professionals must be aware of these potential traps, and should consult with counsel to establish appropriate courses of action

Fantasy Football Insurance

Posted on: October 15th, 2013

By: Seth Kirby

Among sports fans, it is common knowledge that insurance products exist which protect against the risks associated with player injuries.  A professional sports team might purchase a disability policy to pay all or a portion of the salary of a player that is unable to play due to injury.  Similar products exist for college athletes to protect them in the event they are injured and their injuries prevent them from later playing professional sports.  Given the fact that professional sports are a multi-billion dollar global industry, the existence of these unique insurance products is understandable.

Fantasy sports leagues in which participants draft players and compete against each other based upon the statistical performance of their selected team have become an absolute obsession for NFL fans.  Surprisingly, it is estimated that in 2012 individuals spent over $1.7 billion dollars to participate in fantasy sports leagues.  The fantasy sports enthusiast becomes a virtual owner of his own NFL franchise, betting their entry fee on the performance of their star players.  But what happens to the virtual owner when their #1 draft pick blows out their knee early in the season?  Did the owner go from a competitive player to a mere donor to the winner’s fund?  Probably, but did you know that an insurance product exists that will help alleviate this risk?

Established in 2008, Fantasy Sports Insurance sells disability insurance to fantasy sports owners.  The company was recently featured in an NPR report on the “fantasy sports economy”.  It is one of several real businesses that have grown out of the popularity of fantasy sports.  The insurance offered by Fantasy Sports Insurance will refund your entry fee and any associated expenses in the event that your designated player incurs a season ending injury.  If you long to feel more like a real team owner in your fantasy sports exploits, then maybe you should consider buying insurance on your top draft pick.  To read more about the fantasy sports economy, check out NPR’s blog entry.

New TCPA Regulations Effective October 16, 2013

Posted on: October 11th, 2013

By: Matt Foree

On October 16, 2013, new Federal Communications Commission (“FCC”) regulations regarding the Telephone Consumer Protection Act (“TCPA”) become effective.   The TCPA prohibits, among other things, certain telemarketing calls made using an automatic telephone dialing system or an artificial prerecorded voice.

The new TCPA regulations affect certain calls exempted from the Act based on prior express consent.  For example, the new regulations provide that those making autodialed or prerecorded telemarketing calls to wireless numbers must obtain the prior written consent of the recipient of the calls.  Previously, the TCPA did not require that consent be in writing, but could be given orally and case law permitted reliance on the consent exemption if the recipient of the call had provided his or her telephone number to the calling party.  The new regulations do not require written consent in all cases.  For example, prior written consent for the calls is not required where the wireless customer is not charged for the call or when the calls are for non-telemarketing, informational purposes, such as those by a tax-exempt non-profit organization or calls for political purposes.

The new TCPA regulations also eliminate the established business relationship exemption for prerecorded telemarketing calls to residential lines.  This exemption only applied to prerecorded calls to residential lines and not to autodialed or prerecorded calls to wireless numbers.  In issuing the regulations, the FCC noted that complaints about calls based on an established business relationship show that such a relationship does not necessarily result in a recipient’s willingness to receive calls.

The TCPA provides statutory penalties of up to $1500 per call for willful violations.  As such, those making calls subject to the TCPA would do well to ensure that they are compliant with the new regulations.