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Archive for April, 2018

Ordinarily, Is It Professional Negligence? Georgia Supreme Court Thinks So In $22 Million Reversal

Posted on: April 17th, 2018

By: Shaun Daugherty

The Georgia appellate courts have addressed the issues between claims of ordinary and professional negligence in medical malpractice cases for a number of years.  The standards for liability are distinctly different, but in certain factual scenarios there may be a fine line drawn between the two.  The Georgia Supreme Court made a clear distinction on the issue last month in reversing a $22 million dollar compensatory verdict awarded in Southeastern Pain Specialists v. Brown.  This was after the same verdict had been affirmed by the Court of Appeals that found no error in the trial court charging the jury on both ordinary and professional negligence.

The Georgia Supreme Court had some clear leanings regarding the quality of care that was provided in the underlying lawsuit according to the evidence presented at trial.  The case involved an epidural steroid injection procedure where a pulse oximeter and blood pressure cuff were placed on the patient for monitoring while she was administered anesthesia face down.  During the procedure, the evidence was that the pulse oximeter read 0% and the blood pressure cuff registered no reading for a significant amount of time.  The evidence was that the defendant doctor, with knowledge of the readings, continued the procedure insisting that everything was fine.  After the 18-minute procedure, the patient was repositioned on her back and did not recover as expected.  She was taken to the local ER for further care and the defendant doctor indicated to the medical personnel that the patient was having complications from the anesthesia.  He failed to provide any information regarding the intra-procedure pulse oximeter or blood pressure readings. The patient was found to have suffered brain damage and ultimately died from the same.

At trial, the court charged the jury on both ordinary negligence, over objection by the defense, and professional negligence.  The plaintiff argued that the ordinary negligence charge was warranted due to the obvious obligation to save someone if they are not breathing and the misrepresentations made by the defendant doctor to the other healthcare providers.  The court provided no guidance as to which facts and circumstances in the case may apply to which theory of negligence. Further, the plaintiff appears to have argued in closing that the ordinary negligence standard was to be applicable generally to the defendants.

The Georgia Supreme Court made it clear that even “a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice.”  It was recognized that medical providers could be held to the ordinary negligence standard under the right circumstances, but primarily only in those cases where there was no need to exercise medical judgment.  Multiple times in the Court’s reversing opinion, it was highlighted that the facts of the case involved medical data provided by medical equipment during a medical procedure and the proper response to the same.  It was found that this required the exercise of medical judgment.

In cases involving claims of medical malpractice, the defendant is provided a presumption of due care which must be overcome by expert testimony by the plaintiff.  In cases involving ordinary negligence, no such presumption is given.  The Court found that the Court of Appeals erred in finding that a lay person would not need expert testimony to understand the meaning of the data provided from the medical machines and the proper method of response during the medical procedure.  The “trust” of the plaintiff’s argument was that the defendant doctor failed to properly respond to the data that was being provided by the machines.  This was information that required expert judgment and decision making which was outside the scope of ordinary negligence.

The Court determined that providing the jury with an ordinary negligence instruction, without clarification as to which facts and claims it may apply, invited them to decide the medical liability outside the boundaries for claims of professional negligence.  Primarily the need for expert testimony to overcome the presumption of due care.  This was compounded by the plaintiff’s counsel’s arguments in closing which made no distinction and appeared to encourage the ordinary negligence standard to all claims.  The jury verdict in favor of the plaintiff was a general form and did not allow the Court to determine whether the verdict was based on the application of the appropriate standard.  Because it was error to provide the ordinary negligence charge without further clarification or instruction, the Court reversed and remanded the matter to the Court of Appeals with a direction to send it back to the trial court for a full retrial as to the appealing parties, including the issue of punitive damages to which the plaintiff had previously been awarded $0.

So what does this opinion tell us?  It tells us that ordinary and professional negligence claims can live in the same case, but it is essential that they be clearly defined for the jury.  The trial court’s vague instruction, coupled with the plaintiff’s counsel’s closing argument, invited the reversal in this instance.  As the Court indicated many times, medical data from medical machines during a medical procedure require the exercise of expert medical judgment in determining the proper response.  The failure of the trial court and attorney to set this apart from any ordinary duty of care in defendant’s communications to other medical providers was harmful error which required the retrial.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

Lions, Tigers, and… Peacocks? How to Handle Requests for Emotional Support Animals

Posted on: April 16th, 2018

By: Christopher M. Curci

Many HOA’s with a “no pets” policy struggle to properly handle requests from unit owners to have emotional support animals at the property.  Governing Boards have to balance the needs of the unit owner making the request with the competing desire of other unit owners to enforce the Association’s “no pets” policy.  We are often asked questions such as, “Do we have to allow this?” “What information can we request from the unit owner?” and, “Can we impose limitations on where the animal can go?”  Complicating matters is that the law regarding emotional support animals is broadly written and largely unsettled by the courts.

To start, emotional support animals (or “ESA’s”) are different than service animals.  A service animal is a dog that has been specifically trained to perform tasks for an individual with a disability, such as a seeing eye dog.  By contrast, ESA’s provide emotional support and are not required to have any specific training.  Any animal can be considered an ESA.  In one extreme example, an airline passenger attempted to bring her emotional support peacock on an airplane.  This ruffled United Airlines feathers, who refused to allow the peacock on the plane.

The nuances of the law can be difficult to follow.  A unit owner is not required to produce a doctor’s note to verify his or her medical needs – even a letter from a social worker could suffice.  But, if a disability is “readily apparent,” then the Association cannot ask the unit owner to provide any documentation at all.  Further, while an HOA can adopt formal procedures for requesting an ESA, it cannot deny a unit owner’s request merely because he or she failed to follow those formal procedures.  The Association cannot charge a fee to the unit owner for having an ESA, but the unit owner is responsible for any financial damage caused by the animal.  Maybe the ESA can go in common areas, but maybe not.  Confused?  You should be.

There is no “one size fits all” answer to these questions.  We have successfully defended HOA’s that have denied requests for an ESA or have imposed various restrictions on where an ESA can go.  But, each situation is unique and depends on the specific facts and circumstances of the situation.  HOA’s should be mindful that ESA requests can be legal landmines if not handled properly.  The Department of Justice has fined HOA’s $25,000 – $45,000 for Fair Housing Act violations.  Lawsuits and fines can and should be avoided with proper legal advice.

Christopher M. Curci, Esq. is member of Freeman, Mathis, & Gary’s HOA Practice Group and regularly advises and defends HOA’s in housing related disputes.  He can be reached at [email protected] or by phone at 267-758-6013.

Bonus or No Bonus? California Supreme Court Clarifies Calculation of Overtime

Posted on: April 16th, 2018

By: Christine C. Lee

Calculating the correct overtime pay rate for non-exempt employees just got a little more complicated for California employers who elect to pay bonuses.  In the recent case of Alvarado v. Dart Container Corporation of California, plaintiff Hector Alvarado, a non-exempt warehouse worker, was paid a flat “attendance bonus” of $15 per day in addition to his hourly rate if he worked a full shift on a Saturday or Sunday.  Because there was no California statute, regulation or wage order directing how employers should calculate the rate of pay for overtime purposes when such non-discretionary flat sum bonuses are paid, the employer, Dart Container Corporation of California, followed the methodology set forth in the federal Fair Labor Standards Act (FLSA).

Dart calculated the overtime pay rate by taking Mr. Alvarado’s total earnings in the relevant pay period, which included the attendance bonuses, and dividing that figure by all hours worked in the pay period including overtime.  Using this figure, Dart paid Mr. Alvarado 1.5 times this rate for every overtime hour worked.

To thank his employer for the bonuses, Mr. Alvarado sued Dart in a wage and hour class action alleging Dart miscalculated the overtime rate of pay.  He argued Dart should have divided the period’s earnings and attendance bonuses only by the amount of non-overtime hours worked which would have resulted in a marginally higher overtime rate of pay.  In support of his position, Mr. Alvarado relied on the California Division of Labor Standards Enforcement’s (DLSE) Enforcement Policies and Interpretations Manual which states that when employees earn a flat sum bonus, their overtime rate is determined by dividing the regular and bonus earnings only by the regular non-overtime hours worked during the relevant pay period.  The case reached the California Supreme Court for guidance.

There, Dart argued because its formula complied with the federal FLSA when California law gave no guidance, its methodology was lawful.  Dart also argued the DLSE Manual was merely an underground regulation and interpretation of the law and therefore was not entitled to any special deference.  The Court agreed the DLSE manual was not entitled to special deference.  Nevertheless, the Court held “[W]e are obligated to prefer an interpretation that discourages employers from imposing overtime work and that favors the protection of the employee’s interests.”  The Court found Mr. Alvarado’s method was “marginally more favorable to employees” and should now be the law of California.  To add further ambiguity to its ruling, the Court cautioned this methodology only applied to non-production related flat sum bonuses and not necessarily to production-based bonuses such as piece rate or commission-based bonuses.

Dart requested only prospective application of the Court’s rulings since California law had been unclear up to that point.  The Court refused the request, leaving Dart on the hook for 4+ years’ worth of unpaid overtime, penalties for inaccurate wage statements, penalties under Labor Code §203 and California’s Private Attorney General Act, and attorney’s fees and costs.

The unfortunate result of this decision is that employers may stop bonusing non-exempt employees and/or flee California to avoid this kind of catastrophic litigation.

If you have any questions or would like more information, please contact Christine Lee at [email protected].

 

New Jersey Passes New Pay Equity Bill

Posted on: April 13th, 2018

By: John P. McAvoy

On March 26, 2018, the New Jersey Legislature passed Senate Bill 104, an all-encompassing pay equity bill. Senate Bill 104, entitled the “Diana B. Allen Equal Pay Act,” expands the New Jersey Law Against Discrimination (“LAD”) beyond gender and race/ethnicity pay equality and endeavors to promote equal pay for all protected classes under the LAD. Governor Phil Murphy is widely expected to sign the measure into law effective July 1, 2018.

Substantial Changes to Pay Equity Law

Senate Bill 104 makes four particularly noteworthy changes to the State’s pay equity law, all of which substantially affect New Jersey employers.

First, and most importantly, the bill prohibits pay disparities based upon any ‘protected characteristic’ protected by the LAD. ‘Protected characteristics’ under the LAD include, but are not necessarily limited to, gender, race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, and disability.  Employers are prohibited from paying protected class employees a lower rate for wages, benefits, and/or other compensation than employees who are not members of the protected class “for substantially similar work, when viewed as a composite of skill, effort and responsibility.”

Second, it expands the LAD’s non-retaliation provision to protect employees who seek legal advice, share relevant information with legal counsel, or information with a governmental entity, for any reason, and not solely limited to pursuing legal action or an investigation regarding equal pay.

Third, the bill extends the statute of limitations for pay equity violations to six years.  It further provides that liability continues to accrue and back pay is available for the entire period during which the violation has been continuous, subject to the now six-year statute of limitations.  The statute of limitations may be tolled by the continuing violation doctrine and/or the discovery rule.

Fourth, it significantly increases the damages that are potentially recoverable for an unlawful employment practice. Under the new bill, an unlawful employment practice occurs each occasion that an individual is affected by a discriminatory compensation decision or other practice. This includes each occasion that wages, benefits, or other compensation are paid by virtue of the decision or practice, thereby increasing damages significantly. In addition to back pay and liquidated and common law tort damages which the LAD already provided, the bill provides that a jury or the New Jersey Civil Rights Commission must award treble damages (i.e., 3x damages) when an employer violates the equal pay or expanded non-retaliation provisions of this bill. As a result, employers deemed to have committed an unlawful employment practice will be required to pay a hefty amount.

Recommendations to Employers

Employers should take steps to justify any differential in the rate of compensation paid to similarly situated employees. Under the new bill, employers may justify a differential in the rate of compensation by implementing a seniority system, merit system, or a bona fide factor other than a protected characteristic. Such factors include education, experience, training, or the quantity or quality of production so long as it is job-related, and based on a legitimate business necessity, and if the employer demonstrates that the factor is not based on, and does not perpetuate, a differential in compensation based on any protected characteristic. Employers should document any justification that warrants a differential in the rate of compensation paid.

Employers should consider engaging in attorney-client privileged equal pay studies to ensure that compensation differentials can be explained based on legitimate, non-discriminatory reasons.  Such studies should also be considered at the time that bonuses, merit increases, and other benefits are being finalized to ensure that potentially violative salary differentials are not unwittingly triggered.

Want to learn more about equal pay studies? We can help you decide whether an equal pay study is right for your company.

Please call or email John McAvoy (215.789.4919 [email protected]).

Tax Day Troubles?

Posted on: April 12th, 2018

By: Jessica C. Samford

As the well-known saying goes, “Nothing can be said to be certain, except death and taxes,” and with the federal individual income tax deadline quickly approaching on Tuesday, April 17, 2018, now is a good time for tax professionals to take a quick break from their busy season and take account of the possible liabilities that could arise when filing tax returns.

Similar to legal malpractice claims against a lawyer, an accountant may be held liable for professional malpractice, which often involves allegations of a negligent act or omission in performing accounting services below the standard of care for certified public accountants, for example. A simple illustration of this would be if a tax professional misses the deadline by failing to file either the tax return or the extension, postmarked on or before Tax Day (perhaps with a payment to accompany the extension to decrease the potential for interest and penalties).

While the advent of e-filing alleviates some of the pressure of the Tax Day deadline, there could still be mistakes within the returns themselves. Whether it be inadvertent typos, reliance on figures miscalculated by prior tax professionals, or reliance on misrepresentations by clients, the decision to amend the return or not after a mistake is discovered also affects potential liability of the tax professional. Unhappy clients can get creative in asserting numerous claims under a variety of theories in addition to professional malpractice, such as breach of fiduciary duty, fraud, constructive fraud, negligent misrepresentation, breach of contract, breach of good faith and fair dealing, violation of applicable state laws, etc.

Although having to file taxes may be as certain as death, accounting service liability has many uncertainties to account for, such that professional liability insurance and assistance of legal counsel should be considered in any risk management strategy.

If you have any questions or would like more information, please contact Jessica Samford at [email protected].