Sometimes managing people is like that, and even in an age where everyone threatens to sue if you fire them, cleaning house is still a good idea when service requirements make it necessary. If you don't get rid of the dead wood in a work environment, before long all you'll have is dead wood.

A work environment is something like a good soup. If you have the right ingredients, and everything does what its supposed to, the soup is good, and it works. But put in the wrong ingredients, or ingredients that don't go together, and you can quickly have something that even the dog won't eat.

It's like that with people, too. Get the wrong mix of people in an organization, and you can pretty quickly have a situation where no work gets done, and no one cares. Patients, and patient care suffer. That leads to patient dissatisfaction, unhappy family members, and often times, lawsuits.

Early on in my professional career as a therapist I managed a department with a struggling supervisor. Rather than call out people who weren't working, she would often just go do their jobs for them because it was easier than fighting the uphill battle and dealing with all the grief staff would dole out. But every now and then it boiled over, and when it did, the staff would come crying to me because they just didn't understand why the supervisor could be "so mean."

One of the key players in this mix was a staff person we'll call Sheila. She was always whispering in everyone else's ear, and she always told them what to say. Her mantra was always the same: no one gets ahead here unless they are a "brown-noser." She had a unique ability to find something wrong with the best of situations. She was what I would call a pot stirrer. She stirred the pot, but she didn't want to get into the soup herself.  She always seemed to have plausible deniability.

When we figured out that she was the instigator of most of the trouble, we moved her, involuntarily, to the night shift with the expectation that this would cause her to quit. Instead, 13 people marched into my office and demanded that the supervisor be fired, or they would quit. 

Even though the odds are against it, 13 people can be wrong. They can often be spectacularly wrong. We weathered the threatened wildcat walkout, and a few months later the one bad apple in the bunch left employment for a hospital in the southwest. Almost overnight the attitude in the department improved, and people started enjoying their jobs again. Without someone to remind them on a daily basis of why they ought to be unhappy, they instead found ways to find joy in their jobs.

Human Resource people caution that firing people is expensive. Sometimes you have to pay unemployment. Sometimes they sue. Sometimes they file federal discrimination lawsuits.

As a lawyer, I say let them. Discrimination lawsuits are so seldom won that they are more like playing the lottery than actual litigation.  Unemployment must be paid anyway, and the cost to train new people is more than offset by the improvement in the overall tone of the institution.

And bad people not only are not good for the morale of the unit, they are often not good for patient care.  And I always tell hospital HR people that it is far cheaper and much less taxing to defend a wrongful discharge lawsuit than a wrongful death lawsuit.

Read more articles on this topic:

Crucial Conversations

Hiring for the Future

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Even if you don't reveal a resident's name, if you disclose on public social media sites the details of resident care, you're violating the resident's privacy, your employer's work rules, and more likely than not, state law regarding medical confidentiality. You're also putting your professional license at risk.

As an attorney, people tell me stories all the time. Some of them are really too good not to share, but even as much as I might like to, I don't share them. As an attorney I have a sacred trust to uphold when it comes to protecting my clients, even if it's only from laughter and ridicule.

Recently a nurse I'm acquainted with told a story about a patient who was confused. It was indeed the kind of funny that would send a seasoned Hollywood writer running for a pen to write it down. The communication was not made in private. She was not asking for legal advice. She was, in my opinion, just poking fun at a poor old woman who didn't understand the meaning of a few key words.

When her story was over I thought immediately that I had to share it, and then I thought better of it.

The next time a clinician starts to tell you a funny patient story, do her a favor. Remind her that she's playing with fire.  Even if the employer doesn't discipline her, the family doesn't find out, and the HIPAA compliance people don't come after her, she's violating her professional ethics by talking about residents. You might even be saving her nursing license in the bargain.

Read more articles on privacy:

Social Networking Gone Bad

Risk Assessment & HIPAA

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Of the care delivered in SNFs, much of it is delivered in non-profit nursing homes operated by charitable organizations including churches and Catholic religious orders. The other non-profit type of nursing home is the public facility funded by taxpayer dollars.

In a recent newspaper editorial a reader opined that public nursing facilities are, more often than not, the best option for community-based skilled nursing care. The editorial argued that for-profit nursing homes are not delivering good care, and that as a result publicly-funded nursing homes are the answer.

The data, however, does not bear out that opinion. Not only are many for-profit nursing homes providing excellent and cost-effective care every day, but many state and county owned homes tend to be inefficient and operate more expensively without providing any better care than their for-profit counterparts.

The secret is in the management and supervision of the employees. In most corporate-owned for profit facilities, employees work at will. They can be hired and fired for any reason or no reason. There is no convoluted disciplinary process to let an employee go. Corporate facilities have built in processes designed to make sure the operation runs efficiently.

Not so at many public facilities. Not only do some employees enjoy tenure that protects them from all but the most serious of violations, but seniority and union status often complicate the improvement of the quality of care through work rules and grievances.

Worse, because the public facility can simply ask for more tax money, there is no incentive for a public facility to be efficient and save money. In fact, just the opposite. Government operations often take the view that if they don't spend money, they won't get it in their budget next year.  As a result they buy supplies and equipment that they don't need in order to secure funding for future years.

Certainly not every public facility is inefficient or delivers bad care, but neither is every corporate owned facility a death trap with bad care. The truth is never at the extremes and viewing an industry through that lens is fraught with peril. 

Nursing home staff and administrators should take every opportunity they have to educate their friends and family about the reality of the work that they do, why its difficult, and how it is compensated. If people understood more about the funding and administration of nursing facilities, federal laws on the subject might well improve.

Read more blogs on this topic:

For-Profits Under Attack

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Time after time in this forum and everywhere I get asked to speak, I spout the golden rule of medical negligence: people don't sue people they like. 

I also tell people the corollary: If you make people angry, and they don't like you, they have no problem with suing you. In fact, they like it.

I was reminded of this last week when I went into the hospital for cardiac catheterization. As a side note, I think that the choice of wording has a lot to do with how normal people perceive things. Those of us with healthcare backgrounds know, when we hear "cardiac cath" that they'll stick a balloon in our artery and shoot die through it to see if we have perfusion. 

But when we refer to something as a "dye study" we should be mindful that homonyms, words that sound the same but have different meanings, should always be avoided. If you knew they were sticking a plastic catheter into your heart and you had no medical background, the concept of a "die study" would be, well, to say the least, frightening.

The result of my "dye study" was three new stents in my circumflex artery. I now have so much metal in my heart that I have to take a teaspoon of Liquid Plumber every morning at breakfast. But, while the cardiac end of things came off without a hitch, there was a complication.

Specifically (and there is no non-embarrassing way to say this), my urinary catheter gave me a urinary tract infection. Those of you who work in SNFs know these are common and frequently associated with catheterization. You also know they're painful. I assumed mine was normal irritation from the catheter. But when it had not gone away by my first day home, I called the cardiologist to get something for it.

As a general rule, and I am sure there are exceptions, most cardiologists are medical doctors, internists, who have not only completed an internal medicine residency, but have done a cardiology fellowship. Somewhere along the line it is certainly inferable that they learned a thing or two about infections and antibiotics. Here is the transcript of my call with the doctor's nurse:

Nurse: I got your message. Dr. X doesn't treat infections. He only writes prescriptions for cholesterol and cardiac medicines.

Me: Excuse me?

Nurse: You need to see your primary care doctor.

Me: My primary care doctor didn't cause this problem. My cardiac cath, the one your doctor set up for me, that's what caused it. I need to get a prescription.

Nurse: I'm sorry. I can't call it in. He doesn't write them.

Now, that's what was said.  Would you like to hear what I heard?

Nurse: You are completely unimportant to me.

Me: Excuse me?

Nurse: A pimple on my behind rates higher than you do.

Me: My primary care doctor didn't cause this problem. My cardiac cath, the one your doctor set up for me, that's what caused it.  I need to get a prescription.

Nurse: I have to do my nails. Please die quietly and don't call back.

Have I taken some liberties here? Sure. But the issue is that your average Joe, when they have an interaction like this, carry away from it a feeling that they are less important than whatever was on the supper menu that evening. 

Messaging is important. If this was really the doctor's policy he should tell people this up front. In the pre-procedure and post-procedure visits, he should instruct his patient to call the primary care physician for any problems that are not cardiac in origin. 

And Nancy Nurse could have done a lot better too:

Nurse: Thanks for calling.  Do you remember when you were here and we gave you the written instructions for after the hospital visit. We told you in that pamphlet that if you had an issue that wasn't related to your heart or your heart medications that you should call your primary doctor. Do you remember that?

Me: Uh, no?

Nurse: Here's what I can do for you. How about I call Dr. Y's nurse and have her give you a call. Will that work for you?

Me: That would be great. Thank you.

When people feel valued, they are happier with the care, and are more willing to forgive honest, even if tragic mistakes. But make them feel like they're an interruption in your day, and your life is going to get ugly.

More articles on this topic:

Keys to Uncluttered Communication

Resident Engagement

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The recent release of a 911 tape from a non-skilled residential facility has much of the country talking about what a caregiver's obligations are to the patient. In the case making news this month, the nurse involved believed that the facility had a strict policy that forbade employees from rendering any kind of care -- including CPR -- to the residents. The facility later announced that the nurse had a "complete misunderstanding of our practice."

(if you haven't read the full story, read the AP's version here.)

Editorials like the one appearing in the Tennessean illustrate how profoundly this affected people without any knowledge of health care operations.  As the newspaper noted "how can any moral human being refuse to ask anyone nearby to help, as happened in this case, during the course of a 7-minute, 16-second 911 call."

They also illustrate why newspaper reporters should not practice law. The editorial in the Tennessee paper states that the acts of the nurse in this case should have been protected by the Good Samaritan law. That would be correct if this happened outside of a facility, and when the nurse was not on duty or not being paid to care for the resident. But if you're on duty and you're being paid to care for a resident, the failure to exercise the proper care and to discharge your duty under the standard of care subjects you to a lawsuit for malpractice, and the Good Samaritan law doesn't apply.

Reacting to an emergency in the community -- at the mall or at a softball game -- is always protected under the Good Samaritan law. A plaintiff would have to show something more than gross negligence in most cases to get a judgment in almost any state. But when you're at work -- and this is important --- you are not doing the work of a good Samaritan when you're rendering care. You're being paid for it. So that means you have to do it right.

Don't let well-meaning people explain your legal rights. If you have questions about what your state's Good Samaritan law covers, talk to a lawyer in your state.

More articles on this topic:

Documentation Keeps Nurses Out of the Courtroom

Reducing Liability Costs

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Reasonable security measures include motion-sensitive lighting, proper door locks, and in some cases, security officers. Each location and the risks associated with that location must be assessed individually. This is one reason why SNFs and other facilities often require name badges and other means of identification among staff members.

But what about the security of visitors, suppliers and other vendors? Does a facility have a duty to protect them from the criminal acts of third persons? In most cases the answer is no. Unless an individual is uniquely vulnerable (as a senior citizen or infant would be), or is neurologically compromised (for example, under the influence of narcotics and unable to protect themselves), in most states a facility is not under a duty to protect them.

D.B. was a 22-year-old with a new car and he was visiting a large chain restaurant in Kansas City, Mo. His vehicle, a very desirable sports car, drew attention from several individuals who followed him to the restaurant parking lot with the intention of stealing the car. Workers inside the restaurant, who happened to see an altercation shaping up in the parking lot between D.B. and the men who were after his car, went to the restaurant door and locked it from the inside to prevent D.B. (and those chasing him with weapons) from entering into the restaurant. This was part of the restaurant's protocol for safety and security, even if it looked somewhat uncaring to the young man pounding on the glass for entry.

As a result, while he was trying to gain entry to the restaurant, D.B. was shot once in the back, and paralyzed from the waist down. He sued the restaurant under a theory of premises liability -- that the presence of criminal elements in the area created a dangerous condition on the property -- and he lost at trial. The jury refused to hold the restaurant owner liable based on the criminal conduct of a third party. (The plaintiff had turned down an offer of $800,000 prior to trial, making the jury verdict particularly painful for him.)

Other cases in other jurisdictions reach different results, but generally, unless a property owner knows that its property is in a dangerous or high crime area, there is no duty to warn or go to the aid of a person under criminal attack. But most innkeepers and other businesses in high-crime areas post signs warning of criminal activity and advising their customers to safeguard valuables.

Nevertheless, in a hospital or SNF environment it is important to protect patients and residents to the extent possible from criminal acts. Residents should be warned and constantly reminded to put away items of value (watches, rights, cell phones, credit cards). Identity documents and money should be placed in the facility safe. Access to residents should be carefully monitored and guests, vendors, and suppliers should be required to sign in when present on the premises.

Sensible precautions up front help prevent claims by patients later.

For more articles on legal issues see:

Managing LTC Liability Costs

Guardian Compensation

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If you're like most clinicians, you judge the people you work with as much by their knowledge and experience as by their results. In most cases you've worked alongside these folks for months and come to know them as competent and caring individuals. But what happens when you come to suspect that the person you've been working with doesn't have a license?

For most clinicians, who guard their license to practice with their lives and who protect that privilege by following the rules, the idea that someone would simply start providing patient care without a license is hard to swallow. After all, doing so would no doubt cause a state board to permanently bar the practitioner, and the boards of sister states would likely follow suit.

But then there is the strange case of Calvin "Tamieka" Butler in West Palm Beach, Fla. Calvin has no medical degree. Calvin has no license to practice medicine. What Calvin does have is access to a hardware store and a Walgreens. 

For the second time in a year, Calvin was recently arrested for practicing medicine without a license. According to reports, Calvin used commercially-available silicone (the kind that is presumably used to caulk windows and doors) and ordinary Krazy Glue® to add bulk and body sculpt to unwitting patients. While the media pokes fun at the rubes who went to a motel room to let a "doctor" inject them with caulking materials, the same media reports indicate that these patients are probably scarred for life as a result of Butler's unauthorized practice. Butler was a low-tech con man with high-tech aspirations.

Frank Abagnale, the real-life inspiration for the movie "Catch Me if You Can," also held himself out to be a physician. For 11 months, Abagnale impersonated the chief resident pediatrician in a Georgia hospital. The job of the chief resident was not to directly treat patients, but to supervise those who did. So Abagnale allowed residents and interns to do the bulk of the work for him. Acting the part of a physician by being at times arrogant and at other times understanding, Abagnale successfully convinced most of those he worked with that he was, in fact, a physician. After a very sick infant nearly died because he did not understand the terminology used by a nurse, Abagnale left the hospital because he realized he was putting lives at risk. Importantly, the medical establishment never caught Abagnale. Apparently no one ever bothered to check his credentials or qualifications, accepting them on faith.

While most facilities require background checks and verify credentials with state organizations, sometimes that alone is not enough. Abagnale used a fake name - Frank Conners - to practice medicine. Most background checks are conducted on the basis of name and social security number. If a person successfully steals the name and social security number of another individual, they not only have access to their name and credit, they have access to their professional qualifications, too. And one need only pick up the newspaper to know that identity theft is a real problem in this country.

While I-9 forms and other methods of identity verification are used by most employers to verify citizenship, very few actually go to the trouble to verify that the I-9 form's identity documents accurately show the person named. Instead, most employers simply assume that a driver's license and a birth certificate showing US residence is sufficient for the task. But these documents - as any 18 year old trying to get into a bar can tell you - are easily counterfeited.  And while the bouncer at a bar or night club might look very closely at such an ID, most employers, glad to have a warm body, do not.

So what does a fellow employee do when he suspects that a co-worker may not be all he seems? The short answer is to report the situation up the chain of command at the facility. If the employee is not satisfied with the response, the employee can make a further report to the regulating board (board of nursing, medicine, physical therapy, etc.)

Sometimes an employee will take matters into their own hands, investigating by using the internet or online background check companies to determine if an individual is who they say they are. This is dangerous for two reasons. First, if the individual you are investigating learns of it, he or she might take direct action against you. Second, if the individual is actually legitimate and you dig too deeply into their past, you may violate their privacy and become a target of discipline by your facility (or your state board) yourself. For this reason, the smart money is always on letting the state do the investigation.

The California Court of Appeals, and the State Supreme Court have now determined in California that nursing home residents can sue if a nursing home does not provide the required number of hours of care. California's rules require long-term skilled-nursing facilities to provide each resident with 3.2 hours of nursing care per day. A group of patients suing provider Covenant Care claims it failed to meet those standards at least 35 percent of the time over a four-year period that started in December 2006. 

Under the law of most states, when a state passes a regulation for the protection of a specific body of citizens the violation of the regulation can be considered "negligence per se" in some instances, and evidence of negligence in others. However, in federal court and in some state courts, unless the statute provides for a "private right of action" the statute can't be the basis of a lawsuit.

In California the number of enforcement actions brought by the state against facilities has been very small, owing mostly to the fact that the state has very limited resources and the state inspection program is grossly underfunded. In spite of this, the caregivers argued that because there was no private right of action, the only people who could enforce the statutes were the state regulators.

The argument was a good one, and in many states it would have been a winning one. But both the California Court of Appeals (by a unanimous opinion) and the Supreme Court (by refusing to review the Court of Appeals decision) have now spoken on the issue. In California a nursing home resident who doesn't get his full 3.2 hours can sue.

This will likely force the legislature to act because the regulations were never meant to be privately enforced, and private enforcement could create a wide range of problems for caregivers. How does a caregiver document 3.2 hours of care every day? Will each patient have a time card? 

Of course, just because the facility can be sued doesn't mean the facility will be found to have violated the law. Anyone can sue. Plaintiffs will have to demonstrate that they have been harmed by the failure to provide adequate staffing. While there is an argument that "we're not getting what we're paying for," that might apply, only about 7% of nursing home care is privately paid for. Most is paid for by Medicare and Medicaid, and states already have statutes that allow them to recover for that kind of problem.

No, each patient will have to have some kind of clinical problem that developed or worsened as a result of not getting the 3.2 hours of care, and there will be a need for expert testimony on that subject. While the plaintiffs have won a battle, they have not prevailed yet in front of a jury.

Generally speaking, I can always tell when it's a full moon.  The idea that the moon makes people crazy traces back centuries, and is the root of the word "lunacy."  Lunacy tends to afflict a lot of people who watch daytime television advertising ("Have you been hit by a meteor?  It might be someone else's fault!  Let us sue them for you....") and as a result, lawyers offices tend to get some really funny calls.

An old professor of mine once said that the difference between a fairy tale and war story is that a fairy tale starts off "once upon a time..." and a war story starts off "you're not going to believe this, but..."  So, you're not going to believe this, but this conversation really happened.

I could almost smell the ETOH on this man over the phone. He was convinced that he was being abducted; his belief was sincere. He was just having alcohol-induced hallucinations. This happened my fourth year in practice, and since that conversation, I haven't had too many conversations any stranger. But every now and then I am reminded of the conversation whenever a client calls with a potential infection case.

No place, not a home, not a SNF, and certainly not a hospital, can be made pathogen-free. You can deploy all the UV lights, disinfectants, and sterilants you want, the fact is that every hour of every day, each of us is subject to infection from bacteria and viruses unseen. Anyone who's had the flu this year probably understands that very well. 

In spite of that, when patients get post-surgical or wound infections, they always conclude -- wrongly -- that it is malpractice for that to happen. Sometimes, of course, the perception of negligence is heightened when a caregiver fails to treat the infection, and in some cases when the caregiver fails to find the source of the infection. And the failure to treat an infection can indeed be negligence; but the infection itself is a normal and natural complication of life. It can (and usually does) occur in the absence of negligence. Worse, it runs into the same problem as the case of the space aliens:  no sheriff can be sent out to serve a bacteria, and it's the bacteria, not the clinician, that's at fault.

But that doesn't mean that you should not worry about being sued for infections. Anyone can sue you at any time for anything.  Your neighbor can sue you because you wore red tennis shoes. It doesn't mean he'll win, but it does mean that you'll have to hire a lawyer to defend you. And while you can't outflank crazy, you can at least minimize your risks from normal people.

Pro-active risk management dictates that as part of your teaching you should talk to residents about infections, particularly when a pressure sore or similar event occurs. Teaching should be aimed at explaining all the methods used to prevent sores, and all the methods used to prevent infection when a sore develops. Telling a resident that infections happen as a natural result of a break in the skin helps them understand that even the best of care is unlikely to have prevented it.  And of course, care should be rendered consistent with the plan of care and the standards of care too. But teaching often has the effect of educating people whose knowledge of bacteriology has been learned by watching General Hospital on television.

Keep in mind that diabetics require special attention with skin infections, and the key to surviving any lawsuit (and preventing most) is excellent documentation. Even if the policy and procedure says you don't need to document every day, when there is a wound or an infection -- and especially where the patient is diabetic or has vascular issues --  documentation every day helps prove later that attention was given to the problem. Remember, no one ever got to court and said, "Gosh, I wish I'd written less."

Thanksgiving was a difficult day for me this year.  It was filled with the things I am traditionally thankful for: my wife, my family and my health. The family gathered and there was feasting and frivolity, but I didn't get to enjoy it because, in addition to being a day of Thanksgiving, it was also a day of personal tragedy.

At 6:00 a.m. on Thursday my mother-in-law woke us up unable to breathe. She quickly progressed to cardiac arrest. The cardiac arrest was caused by a spontaneous pneumothorax. Once that was treated, regular cardiac rhythm returned, but not before she was in profound coma from hypoxemia. She is currently comatose in a hospital bed in an ICU in a small town in the south. For her privacy, I won't reveal her name or the hospital. I will call her Miss Mary because that is the way the hospital staff addressed her.  And I will take a moment or two to comment about my observations about the care she received and the way that care was administered.

Generally speaking people with a health care background are the most critical of their own professions when someone they love is lying in the hospital bed. They look to make sure clinicians wash their hands. They check the charting to ensure ventilator checks are done on time. They ask direct questions. They expect to have direct answers. Let me say, from the outset, that I believe that the majority of people who go into health care go into it with the idea of helping people, and for the most part do a great job. Most do their job competently. Most do it pleasantly. But some go above and beyond.

Take the respiratory therapist who cared for Miss Mary. Every time he approached her and even though she was comatose, before he touched her, he would speak softly to her and say "Miss Mary, I'm just going to listen to your lungs for a minute." He would then do his job, get his readings, and then just as before, he would say "you're doing very well, and I'll be back to see you soon."  To him, Miss Mary was not a lump of flesh in a bed, she was a real person. She was someone who had wants and needs. She was someone with a family who loved her. She was someone who had seen and endured much in her life. And even though she was comatose, he talked to her with respect. He understood the concept of patient dignity.

The night-shift nurse, however, was not quite so pleasant even though she was technically very competent. Surely she was angry to be working Thanksgiving night instead of spending it with her family. I'm sure she was annoyed that the evening shift had let us stay in the room a little longer than the visiting policies provided. Maybe she had burnt chicken for dinner, I don't know. But while she gave Dilantin in the central line and then flushed it, she worked silently, neither talking to Miss Mary, or to us. She checked lines, gave meds, and did measurements all without saying a word. It was like she wasn't even aware that Miss Mary was there in the room with us. When she went to check blood sugar, I could bear the cone of silence no more. I told my mother-in-law "you're going to feel a poke in your finger because they're checking your sugar." 

The nurse looked at me and said, "She's in a coma!"  I nodded, and said, "Yes, but that doesn't mean she doesn't hear you." I got the standard "you don't know what you're saying" look from the nurse who wordlessly charted the numbers and left the room. Miss Mary was a clinical problem. She was the patient in 109. She was the "post-arrest coma" in bed 1. She was a constellation of symptoms, not a human living person. Whether communicated in words or wordlessly through actions, it denotes a lack of respect for the dignity of the patient.

So, today's teaching point, if there is one, is that the one thing that gets more hospitals and nursing facilities sued is treating patients without dignity. It is acting like the patient is a mass of cells laying in the bed, not a human living person. It's the view that the people in the beds are no more than potted plants, and you're delivering the Miracle Gro®. People will tolerate all kinds of errors by well-meaning staff, but they won't tolerate their loved ones being treated like they are not there.

The fact is that every one of us, whether a caregiver, a lawyer, a doctor or a plumber, will one day face the end of our lives, or be in a comatose condition through no fault of our own. If you have burnt toast for breakfast, if you have a fight with your spouse, if you are angry about the election, or your favorite college team's defeat in football, leave it at home!  The people who you care for on a daily basis have a right to expect the best of you. That means they have a right to expect that you will do what you are trained to do both with competence and compassion.  And while both are important, it is the compassion that is remembered by the patient and family long after the stay in the facility is done.

As I have said many times, people do not sue people they like.

From time to time I have argued that insurance is something that people purchase, forget about, and never use.  That is, until something awful happens, and then they find out that the insurance policy they bought is not the policy they think they bought.

As a lawyer who sues big corporations from time to time for violations of the False Claims Act, it’s hard for me to feel sorry when a big company gets hit with a big lawsuit that alleges they bilked the federal government for millions of dollars.  And when that lawsuit is coupled with a claim that the company fired a whistleblowing employee, I have even less sympathy.  But there are news reports today that a Japanese drug-maker is suing its insurer because the insurer is reneging on its insurance contract.

The company thought it had coverage, entered into settlements, and now can’t get the insurer to step up to the plate and pay it back.

Unless you work in the legal profession where this occurs regularly, you probably don’t know that about 25% of the time insurance companies sell policies that provide coverage for several things, but then include exclusions that swallow whole the coverages offered.

If you have not read your homeowner’s insurance in a while, pull it out of the firebox (Yes, surely you keep your policy in a fireproof box in your house in the event of a fire, right?).  Read through the policy declaration page, that’s the one that says you’re covered for $100,000 for fire, wind, etc.  Now go back a few pages and start looking for the exclusions.  Here’s where you’ll find that your insurance policy doesn’t really offer all that much protection.

One of my favorite exclusions is the “intentional acts” exclusion.  Suppose some religious zealot comes to your house and attempts to push his way inside with 14 tracts explaining why you’re going to hell if you don’t convert to his particular religion.  Nicely asking him to step off your front porch doesn’t work, so when he attempts to push past you into your living room, you push him hard in the chest and he falls over your azalea bush and breaks an ankle.  He sues you for battery and negligence.

Battery is what is called an “intentional tort.”  You had to intend to make harmful contact with your victim.  You didn’t really intend to hurt him, you just were trying to keep him out of your house.  Nevertheless, you’re likely to receive a letter from your insurer telling you that it is defending you under a “reservation of rights.”  What this means is that it will offer up a defense but if the plaintiff wins, any judgment gets paid, if at all, by you.

Most people don’t read their insurance policies until after something bad happens.  But the time to change insurers is now if something in your insurance policy is not what you want it to be.  Different insurers have different policies and different interpretations.  It is a good idea to discuss any questions you have about coverage with your insurance agent, and get any answers to those questions in writing. 

For hundreds of years newspapers and media organizations have been throwing their support in one form or another to various candidates. Depending on whether you lean to the left or the right, you can find a news channel on television to give you the news that fits your own political bias. But newspapers, which normally trend toward balance, often endorse one candidate over another. 

This election season, I made an endorsement. I didn't endorse any particular political candidate. I endorsed something far more important: critical thinking. If you think critically, if you evaluate all the factors and biases and predispositions, it is my view that you will ultimately vote in the right way at every level from the state to the national elections.

Let's start with something on the ballot in Missouri, where probably only a few of you are from. There are two propositions that should be considered. One is Amendment 3, and the other is Proposition B. Let's begin with the last one.

Under Proposition B the state's tobacco tax, which is the lowest in the nation, would be raised to improve education in the state.   There are two classes of voters who oppose this initiative. Those who smoke cigarettes, and those who sell them. It seems pretty obvious that smokers would not support the measure because it would require them to pay more. I support their right to object.  But the commercials on television and the signs at the gas stations, all paid for by Big Tobacco, encourage people to vote against it because it's "just another tax." 

So, here's the real issue.  When someone spends money to fight against an issue on the ballot not because they have a personal interest in things (the way smokers do), but because they have a profit motive, it should make you at least a little suspicious about the nature of their opposition to the measure. A critical thinking adult might think that the tobacco companies wouldn't spend millions opposing the tax if they weren't going to lose millions because of it. That would make me discount their message out of hand, and I will certainly be voting yes on Proposition B.

Amendment 3 is similar. Amendment 3 was pushed through by a zealous group of people who seek to change the way judges are appointed in Missouri. In all but four counties judges are elected. In the four biggest counties and at the appellate court level a commission decides on three candidates for each position, and the governor must choose one of the three. The people behind Amendment 3 would like you to vote for direct political control of the courts. Why?  Because the over-reaching legislation passed by the corporate-friendly legislature has recently been running into trouble with judges who understand the Missouri Constitution. In essence the politicians want to make the least political branch of government as political as the other two.

When judges decide based on the facts and the law, and not because they are beholden to special interests, it works in favor of the general public, and against the interests of people who would spend their money on the best legislators money can buy. Is it any wonder that these folks would fight back by trying to buy the Courts too? And if it is good for corporations and lobbyists, do you think it would be good for you?  gain, critical thinking argues against voting for this amendment.

At that national level Political Action Committees or PACs now dominate the advertising and the media generated around the election. Some of these PACs are funded by billionaires. They write multi-million dollar checks to support them. Some of these millionaires and billionaires made their money on the stock market and in banking circles and have been hurt by financial reform spearheaded over the last four years. 

One noted former presidential aide to Mr. Bush has been spent more than $100 million on television ads pushing one candidate. All of these PACs either have lofty-sounding names (The Freedom Coalition) or they have names that make no sense at all (GPS-Crossroads). But what they have in common is lots of money, and money can buy talented salespeople.

These commercials are triumphs of media glitz. The flag flies proudly in the background, eagles swoop from the sky, military men and women salute, and earnest announcers talk about freedom and liberty all while asking voters to reject these same concepts when it comes to a woman's reproductive health care. 

So the question has to be this: what makes it worth $100,000,000 to these corporate titans to advocate for a change in government? The answer has to be something worth more than $100,000,000 or it makes no sense.  Since you cannot take liberty and freedom to the bank, then the answer must be that the people who the advertisements support will throw back to these corporate sponsors something worth far more than $100,000,000 at some later point in time. 

Again, this should make the critical-thinking voter sit up and take notice. That's especially true when the average donation for the other guy's campaign has been from people giving $25 to $50 a month out of their paychecks.

PT Barnum once said there was "a sucker born every minute." 

In December, 1944, on a cold and snowy field in the Ardennes, my Uncle Victor Gower was shot in the chest and died in service to his country. He died to safeguard my right to vote.  When it came time, I put on the same uniform of the United States Army, as my son did, only a few years ago, to make sure that the right to vote was protected.  All of us swore an oath to the Constitution. 

This year, as an attorney, I was once again at the polling places to protect the right to vote. The right to vote is too precious, and has come at too high a price in human lives, to exercise without being informed, and being informed does not mean getting all your information from You Tube, a particular news station, or one publication. It does not mean being swayed in exercising the franchise by your local newspaper. Whoever you voted for, you should have because you conducted honest personal research and found the candidates that best protect your interests. Inform yourself. Don't prove Mr. Barnum right. Get the facts and make your decision from the facts.

That is what it means to be an American.

As a health care worker I never believed unions were in the patient's best interest in the hospital setting. I still hold that belief in general, although the long-term care arena is one of the few places where I believe the benefits and protections afforded workers outweigh the slight risks to patients. Much of the work force in a long-term care facility is unskilled labor (nurses aides and assistants). Many of these folks could not act as their own advocates in getting better pay or benefits, and probably require a union to get it done in situations where management is purely profit driven. In the majority of well-run nursing facilities, unions do not add much. If you treat employees fairly, in most cases you never have to worry about a union.

Today comes news of a union-related problem in California. The facility at issue was sold. The seller employed nurses and aides represented by a union. The buyer knew this, but didn't want to deal with them. When the new buyer took over, he decided he did not need union workers and proceeded to refuse to negotiate with them, firing union workers and replacing them with non-union employees. The union filed an action with the National Labor Relations Board (NLRB).

But you just can't do that. The National Labor Relations Board imposed a $1.25 million assessment, directing the rehiring of terminated workers and ordering backpay. It also issued an order mandating compliance. 

This is what happens when people who have never tried to deal with a union try to deal with one in a heavy-handed way and without legal assistance up front. The union may not win the early battles, but in the end it prevails with the NLRB. Along the way, legal costs mount, and whatever money the facility saved by trying to dislodge the union it wound up paying back twice when it was all over. And now employees who probably never would have joined a union now see that a union has a significant advantage for them.

If you have union woes, hire an expert. Don't try to go it alone. Lots of companies provide legal and professional assistance in dealing with unions. They earn their money.

One of the things I love about the South is that every Fall there are craft festivals. My wife's favorite of these is held in Gay, Georgia on the first weekend in October. This year I met a woman who was selling a product she designed and patented that is a modular bib.

I suggested she should market her products in the long-term care industry. She indicated she was already doing that. The design and functionality of this creative bib system permits a resident to wear a small, lightweight bib over which a larger washable bib is attached with Velcro. If the bib becomes soiled it is easily removed, washed, and returned to service,

Peggy, the owner and entrepreneur who developed the bib design is, like me, an Air Force brat who grew up all over the world. Her company is located in Columbus, Georgia and she has a Facebook page where you can get more information on Peggy's Bibs.

What intrigued me about the product was her statement from an elderly user who used to have a thick terry cloth towel draped over her at mealtime. It made mealtime hot and uncomfortable. "I got my dignity back," she said.

One of the things people often cite about nursing homes is that the residents are deprived of their dignity. They often lack control over bodily functions and are frequently at the mercy of their caregivers. And when SNFs are sued the underlying theme is often one of stolen dignity. So if using a well-designed product improves residents’ perceptions about their dignity, that's probably money well spent.

   Peggy Gay - (706) 575-4918 -  Info@peggysbibs.com

Lawyers are supposed to love going to trial.  I never have.  It's a lot of stress for a short period of time, and the courts generally don't favor plaintiffs attorneys.  But when the other side never makes an offer to settle, you have to be willing to go to court and get your case heard.

So on Sept. 17, 2012, I went to Cole County Circuit Court prepared to try my case against a local nursing facility.  The allegations were pretty serious.  The facility let a resident's weight drop from 162 to 137 over 45 days and never intervened.  For two months they had not been keeping food intake records, and at one point a period of 26 days elapsed between nurses notes.  The photographs of the resident's bruising were almost stomach-turning.  It was an awful case.

The defendant, of course, said we were full of gas.  Twenty-six days without a nurses note?  No problem.  Twenty-five pound weight loss?  No problem.  Twenty-six bruises, including bruises on the inside of the woman's thigh?  No problem.  She was old, she was going to die anyway.

The first phase of any trial is voir dire.  That is Latin for "to speak the truth" and it talks about the process where jurors are asked about their biases and prejudices.  Everyone comes to court thinking they can be fair, but some of our biases are just too much.  One juror in our panel said he had a similar experience with the same nursing home, and he clearly did not think he should sit on the jury.  But others never said a word when first I, and then my opposing counsel, asked the panel questions.  They sat with their arms folded and their faces inscrutable.  It was like picking a jury full of sphinxes.

After throwing off 20 people for bias and prejudice, the net result was a jury of 12 people and 2 alternates that we couldn't tell one way or the other whether they were fair or whether they could be fair.  But it was our jury, and we were set to live with it.

We went to lunch and came back ready to open up the case with opening statement.  And that's when the whole thing fell apart.

"Counsel, would you please approach?"

At the judge's request I went up alongside the defense attorney.  The judge said "I think I should probably tell you that I am pretty sure I've done legal work for both sides.  Ask your clients if you want me to recuse."

Neither the defendant nor our side was happy with this, but in the end the judge had to recuse.  He had a lawyer-client relationship with both parties, and that means that even though he was probably just as fair as could be, there is no way to ensure that.  The defendant was bothered that all the rulings had gone in favor of the plaintiff up to that point, and would have asked him to recuse if plaintiff had not.

So, at the end of the day, after five weeks of prep, we suffered a mistrial.

It's tempting to look at that as a set back.

But a funny thing happened when I got back to the office.  New information came to light.  That information, supplied by a family member, will make a huge difference on retrial, and that could only have happened because we suffered a mistrial here.  

Legal work is taxing work, but every now and then, even when bad things happen, they can turn out for the good.