When lawyers think about sexual harassment, they tend to frame their thoughts based on cases they've handled or discussed. Usually this involves a woman being harassed by a man, although there are the rare cases where men have complained about harassment from women or from other men. These are the minority of cases. Although the advice that follows is framed in terms of being alert to claims of sexual harassment of women, the suggestions are applicable to any group of employees.

Often employees do not come right out and tell a supervisor or manager that they feel harassed by the conduct of another employee. Instead, they may take an indirect route. This is particularly common when an individual isn't well aware of the institution's policies, or where they feel disempowered. Sometimes the message to employees is that  a particular supervisor is "all powerful" and that a challenge to that supervisor or manager would be futile. In those situations employees may try to take a less obvious path to resolve a bad workplace situation. They may want to transfer to another shift, another wing of the facility, or take some other approach to getting away from the person they view as their harasser.  Frequently they won't tell the person they feel is harassing them, or anyone else, that they're feeling harassed for fear of retaliation.

Whenever an employee asks to transfer to a different shift, to a different supervisor, or a different working environment, one of the questions that must be asked is why. If the employee doesn't sound wholly committed to their answer, if they give off body language that suggests they aren't being truthful, or if they cannot meet the supervisor's eyes when having that discussion, it is a good idea to ask "do you have a problem in your workgroup?"

Some employees don't want to make waves or cause trouble, and they think that because an individual or co-worker has a longer history with the company that they are automatically more valued. So where a male co-worker is constantly hitting on a female co-worker for dates, attention or affection, the harassed employee may simply ask for a transfer as a way to obviate the sexual harassment.

This doesn't mean that a supervisor has a duty to create a case for harassment where the employee isn't forthcoming, but rather, that the supervisor has a duty to document that the employee was asked, and denied any harassment by co-workers. This is important because scores of sexual harassment cases involve multiple internal job transfers with the plaintiff making the argument that she was trying to alert the company to the hostile environment without filing a charge of discrimination.

Good supervisors have good relationships with their employees, but those relationships should not extend beyond the door of the office. Although frequently people get together for drinks and to socialize, an occasional get together with all the staff must be distinguished from "come have drinks with me." If a supervisor or manager spends time and attention on an employee who reports to them, this is a dangerous warning sign.

Similarly, where there is dysfunction in a work group, where people don't work well together, one of the things that has to be investigated is whether one person or another is engaging in conduct that is offensive or harassing. It doesn't matter if its jokes, inappropriate touching, favoritism shown on the basis of sex or race, or just a boorish attitude. If you have a problem in a work group, the company suffers. The public image of your organization suffers. You have to address it.

Finally, once every two years, or more often if needed, every employee should receive training on how to present a complaint for resolution. If an employee has a tough work environment or a problem with their boss, they should be reminded periodically that the sexual harassment policy is there for them. It is not a substitute for doing the job right.  It is not a "get out of jail free" card for substandard performance. It is, however, a way to help the organization correct behavior that is offensive or troublesome. And every complaint is an opportunity to improve the organization. That should be the message. And everyone must be told that no one will ever be retaliated against for making a complaint of sexual harassment.

In my next blog I'll detail how to conduct a sexual harassment investigation, and how not to.

No one thinks the workplace should be a free-for-all zone where people's conduct is totally unregulated. Yet, for many years, and in male-dominated industries, the views, opinions and beliefs of women were undervalued and underappreciated. This is just historical fact. If you wanted to be a woman in the workforce in the 1960s and early 1970s, you had to put up with a lot. 

Today, most businesses have policies and procedures governing work place conduct that require people to behave in a calm, professional, and business-like manner at all times. The polices are written with gender neutrality. There are not different rules - written or unwritten - for women any more than there would be for members of racial, ethic, or age-based groups. But as long as there are more than two people on the planet, there will be disagreements about things that are based on the differences in perception. So, in any organization there must be a careful, measured application of rules and regulations to ensure that everyone stays within the confines of the sexual harassment policy, because what is harassment to one person might be the funniest joke ever told to someone else.

As a person who generally loves humor, I operate from the state of mind that no one really wants to offend anyone when they tell a joke, or make an off-hand comment. If someone wants to offend, there are better ways to do it. A direct, pointed comment usually suffices. But, because people view different things in different ways, it is almost impossible to tell a joke in a business environment today and not run afoul of someone.

Part of a supervisor's job is to keep the workplace free from comments, suggestions, jokes, intimations, or other communications that demean, harass, vex, annoy, chide, or otherwise offend members of specific classes. Jokes based on religion, age, sex (gender) or race are not going to be funny to members in the lampooned group. No matter how much a person might laugh at such an attempt at humor, it doesn't mean they appreciate it.  And when a person laughs at a joke to avoid being ostracized by the group, that doesn't serve as a defense to sexual harassment (or any other form of discrimination).

All of this suggests that the workplace needs to be some dour place where no one ever laughs or has fun.  That's clearly not the intent of the sexual harassment law.  It is instead to protect the reasonable expectations of reasonable people. And, for that reason, when a person claims sexual harassment or a hostile work environment based on comments or statements that a reasonable person would not find offensive, courts do not impose liability.

The job of the supervisor is to walk the fine line between allowing people to be people, and have personalities, and keeping conduct that crosses the line from going unchecked.

In my next blog I'll talk a little bit about the things supervisors should be alert for in monitoring the workplace for sexual harassment.

The trumpets have already sounded, and the fight is on over health care. The warriors are riding toward the battlefield in DC, and they are armed with their powerpoint slides, their position papers, and of course, their checkbooks.   

On the one side we have the insurance companies who are not eager to compete for health care customers, and on the other, we have the consumers who are tired of having a wallet-ectomy every time they get sick. Add into the mix more than 90 million uninsured (or underinsured) citizens, and what you have is a recipe for the most jumbled, complex, mess of government regulation and oversight ever in the health care system. Is that good? Of course not!

The problem with the American political system is that every interest group, from the National Fisheries Institute (a trade association "committed to assisting its members to succeed in the global seafood marketplace") to the National Association of Catholic Diocesan *** and Gay Ministries has a lobbyist (and usually more than one) spreading its message and its cash around in large quantities on Capitol Hill. It has been said that if lobbyists could not buy meals for congressmen and their aides, 60 percent or more of the restaurants in the District of Columbia would have to close.   

While there are more than a few congressman who won't sell out their political views for a five-star dinner, there are even more who will at least bring these interests groups into the tent and get them involved in the negotiations for the kind of massive government legislation that health care reform is going to have to be. 

There are two problems with this approach. Given the amount of clout and the amount of influence the long-established lobbyists for very influential companies and industries have, the ability to craft a universal solution for healthcare gets hijacked by what kinds of changes the automakers need in such a health care plan. Similarly, large organizations of hospitals not only worry from the standpoint of who pays the bills, they recognize that they will be facing the same burdens with providing the same kinds of care for their employees that the national plan is going to involve.  With so many voices screaming to be heard on the details, the broad outlines of the reform plan are as fluid as hot olive oil, and likely just as dangerous. And, if everyone gets a hand into the process, you can bet that the process will take so long that nothing will ever happen.

If we are to get health reform, this is what must happen. A small commission of individuals must be developed.  The commission would ideally include one representative from a large manufacturing industry (like the automakers), and one representative small businesses who currently pay for the majority of health care in the country. Congress could then name up to three additional representatives to represent the poor and uninsured, and at least one person who's only job was to look out for working people who pay way too much under the current system, and would like a system they can both understand and use. Included in the commission would need to be representatives from the hospitals and the health device makers, as well as one representative from the Pharmaceutical Industry, and one physician.  If the number of players could be kept to nine, that would be workable. A non-voting member who is a federal judge would keep the commission on schedule and offer legal analysis if requested.

These commission members would have no support staff, and there would be one secretary whose job would be to record the meetings and draft up the recommendations. The commission would meet in an undisclosed location without telephones. Food would be provided, but the commission would be given a short two-week deadline within which to complete its work. No cell phones, no faxes, no emails and no communications with the outside world until the commission came up with a plan that would do the following:

1. Allow the currently uninsured access to quality health care at a rate that was affordable for a working family or single-mother.

2. Allow employees with a current health care plan they liked to keep it; and if the plan was not one of their liking, offer them similar options at different price points. (For example, a 21 year old might not want to have an option for long-term-care insurance, whereas a 58 year old might want such an option and be willing to pay for it.

3. Be fair to all payors in that people who had abused their bodies with drugs, alcohol, or other substances would be required to pay more than those who had not. Similarly, older Americans should pay more for coverage than the young, because they consume more health care.

4. Impose cost reductions and cost savings on the health care industry to reign in price inflation that always outstrips the national average.

5. Leave individual physician autonomy and decision-making unencumbered, but provide incentives for physicians who follow national practice models and who have fewer claims for medical negligence.

Without cutting off the access to the commission details will leak to the press, and those details would cause industry and other lobbyists to pressure commission members to oppose or support propositions that might negatively affect a particular industry, but would be ultimately positive for the country.

It is too bad that this approach isn't going to be advocated or tried, because it could work. The mess that will be made in Washington DC when health care reform takes center stage will more likely resemble the making of sausage than legislation.

When a hospital or a nursing facility hires a physician to work in the capacity of medical director, there is an inherent representation to the families and the public that the facility is vouching for the quality of the doctor. There is a supposition by most residents and their families that the doctor denominated the "medical director" is the person responsible for the quality of medical care provided to residents.  In most cases facilities pay a medical director for services. Unfortunately, all too often physicians seeking appointment have checkered records.

Consider the case of Virginia physician Lewis Rogatnick. Rogatnick had a checkered past when he came to work for Heritage Hall nursing facility in Royal Palm, Virginia. Louisiana, Virginia, Pennsylvania and New York all had disciplined his medical license, and in most cases, for failing to be honest on his applications for the license itself. Although the last censure was in 1999, the pattern of having four suspension on his medical license set of alarm bells with at least one resident who filed a complaint with the facility's licensure board.

Numerous sources exist to check a physician's licensure status and credentials. When a facility endorses a doctor as a medical director, even though the facility tells patients to choose their own doctor, there is an inherent representation that the medical director is a good choice.

Although it is doubtful that the licensing agency will take much time with the complaint against the facility for the medical director's past not being disclosed to patients, the real danger is if the medical director makes significant patient care errors. In that situation the facility might be liable under a doctrine of "ostensible agency." Though not recognized in all states, the possibility exists. If a physician is discovered to have a checkered past, then fact that this was not known to the facility and not discovered prior to the appointment as medical director could seriously impact the facility's chances of being held liable.

For that reason prudence dictates that a full background investigation be performed on any physician denominated as a medical director.

Sometimes perception is more important than reality. That is especially true when the perception is that of a newspaper or television reporter, or a witness that the reporter is interviewing.  

In a perfect world, newspapers would report facts and leave the drawing of inferences to their readers. It is not, however, a perfect world. Recently a West Palm Beach area television station received a call from a man who reported that after returning an elderly resident to the nursing home, the nursing home staff "roughed up" the elderly man.

According to the witness the elderly man was found confused and stumbling through traffic. A helpful citizen found him, realized he was from the nursing facility, and returned him. "I saw this as being my grandfather like somebody physically grabbing him and shaking him like a little kid saying "What are you doing out here?" and being rough with him and scaring this man," the witness told the news crew.

Instead of calling the nursing facility to get the other side of the story, the television crew went out with a television van and tried to interview people at the nursing home. 

This is where the nursing facility administrator lost a perfect opportunity to turn a negative into a positive. Assuming that the return of the elderly resident happened, the person who returned the resident should have been celebrated as a hero. The report should have been made to the appropriate agency, and the slant of the news story would have been much different.

Instead, the administrator told the reporter that people didn't ever walk away from the facility, and if they did, he'd have to report it. That gave the news crew reason to question the accuracy of the comment, and they found that the facility had made three missing person reports in the past year, and was ranked in the lower 40% of nursing homes in the county.

Instead of getting positive media attention for "doing the right thing," the facility is instead getting negative media attention for not being completely candid in its responses, which conveys the reporters inferences that the resident likely was treated roughly after being returned to the facility.

Whenever a resident elopes and is returned by a member of the community, every step should be taken to thank the person who acted to protect the resident, and no effort should be made to punish or scold the resident. An incident report should be completed, and the media should be managed. In this case had the administrator taken the good Samaritan into the home, got him a cup of coffee, and profusely thanked him for helping the facility out, the man would likely never have called the media. It was only because he perceived - and that's the key word, perceived -- that something was being done to punish the resident that he contacted the local television station.

It is always better to think things through before deciding on a course of action that involves the media. And it is always possible, even with a story that will be bad for the facility, to offer "no comment" as a response. "No comment" is always better than a half truth, because a half-truth keeps a story alive, where "no comment" causes it to die.

Although disputed by scholars, the term "rule of thumb" is said to derive from the idea that a man could beat his wife so long as he used a stick no larger in diameter than his thumb.    While time and colloquial usage have removed the negative association attached to "rule of thumb," it would be nice to think that the law had progressed to a point that it was well recognized that neither spouse should be able to hit the other with anything. Sadly, in Saudi Arabia, that's just not the case.

Recently an Islamic judge in the Kingdom of Saudi Arabia told a conference on domestic abuse that man should be permitted to slap his wife around if she spent money unwisely, and that women were at least as much to blame for domestic violence as men.  In the culture that spawned this enlightened ruling, women are often regarded as possessions, much the way one would regard a favored suitcase or comfy leather chair. The devaluation of women in those societies stands in stark contrast to the value that we place on the role of women generally.

In American society women enjoy the right to drive, vote, and be involved in politics. In other cultures women do not.  If an American judge were to espouse the view held by the judge quoted in the media reports, he would likely quickly lose his job.  It would be politically incorrect to assert that any victim contributed to their abuse.

At the risk of being politically incorrect, while the idea that it would be lawful to beat a spouse is antithetical to every notion of justice and fair play in my body, I have to agree, at least in some small part, with the idea that women are as much to blame for domestic abuse as men - though, probably not in the way you think.

It does not matter how loud a spouse yells, how many mean things a spouse says, or how completely unreasonable a spouse is: there is no excuse for violence. The person who raises their fist is the person who has run out of ideas and has resorted to the most primitive parts of the human brain for dealing with disputes.  Whether its male-on-female violence, or the other way around, hitting should never be an option. Never.

Similarly, again, without reference to which party is doing the abusing, it is not a defense to suggest that the behavior, conduct or words of the other party induced the violence. Having seen way too many domestic abuse victims in the ER, I have never seen one who "had it coming."

But, the majority of violence is by men and directed against women, and the majority of such abuse is never reported.  Some of this is grounded in the notion of romantic love.  Women often tend to believe the best about their men. They marry for better or for worse, and they simply assume that assault and battery is the "worse" in that trite phrase. Often it isn't until the abuse is so significant as to require medical treatment that any intervention is done, and often it is ineffective because the while the abuse is intermittent and sporadic, good days tend to outnumber the bad. Add to this the promises that the abuser makes to never hit them victim again, and you have a reluctant victim.

Thus, it would appear that there is a degree of truth that women bear some responsibility for the problem.  By failing to take action after the first act of violence, women tend to lock themselves in a prison of continuing violence.

Much of this is tied to the fact that many women have poor self-esteem, often lack a good education, and feel that their economic security binds them to their husband for life. They are in essence willing to trade economic security for an occasional bout of violence. This is the problem, and this is what must be addressed. Health care workers can help.  Whenever there is an episode of domestic violence, the victim should not be allowed to talk the caregiver out of reporting it to the authorities. Failure to report such abuse and violence may in fact be negligent, and may breach your legal duty to the patient.

This duty is especially important in the long term care setting where patients are frequently women who did not even graduate from high school, and who may be subject to abuse not only by their spouses (if still alive) but by fellow patients and visitors. Caregivers should be alert to signs of domestic abuse including:

• Frequent injuries, with the excuse of "accidents"
• Frequent and sudden absences from work or school
• Frequent, harassing phone calls from the partner
• Fear of the partner, references to the partner's anger
• Personality changes (e.g. an outgoing woman becomes withdrawn)
• Excessive fear of conflict
• Submissive behavior, lack of assertiveness
• Isolation from friends and family
• Insufficient resources to live (money, credit cards, car) Domestic Violence and Abuse: Help, Treatment, Intervention, and Prevention
• Depression, crying, low self-esteem

Numerous resources exist on the web to help caregivers learn about domestic violence.  If you are yourself a victim seek immediate help. When the abuse stops, living starts.

You're a federal judge.

You were appointed to your position for life by the president.

You cannot be removed from office except by impeachment.

Since 1990 you have harassed and intimidated every woman that has worked for you, and you've even groped and molested several of them over the course of your tenure.

You've bragged about how much you're feared to these women to intimidate them.

When federal investigators asked about your conduct, you lied.

You were indicted on six counts that could have sent you to prison for life.

You pleaded guilty to a charge of obstruction of justice.

You were just sentenced to three years in prison.

What do you do now?

Well, if you're Judge Samuel Kent of the federal court in Texas, you retire with a disability and continue to collect your $169,000 salary for the rest of your natural life.  Yes, while other inmates at the federal correctional institution where Judge Kent will be sent will be working for $0.43 a day making shoes, or weed-eating prison grounds, Judge Kent will be collecting a nice fat paycheck from the citizens of the United States.  Since he has retired rather than resigned, he retains the title "Judge" even though he is a convicted felon and will likely be disbarred by the Texas Bar. 

Kent was appointed in 1990 and served almost 19 years, but not enough time to retire or take senior status.  Thus, the only way the judge could retire is if he had a "disability."  The disability in this case is alcoholism. 

Media reports indicate that the women who worked for Kent were so afraid of him that they hid in the courthouse in Galveston, Texas, where he was the only federal judge.  The judge frequently bragged that people were afraid of him, and that he could intimidate anyone.  One woman had been molested on her fifth day of employment, and endured abuse and harassment for more than seven years.

If the fact that a judge can get away with sexual molestation, harassment, and creating an environment that causes people to live in fear surprises you, it should not. Federal judges are among the most powerful people in the country. Very few people want to take on a federal judge. 

In one case I was involved in down in the south, the federal judge in the case acted with utter disregard for settled law to achieve a result that he wanted to achieve. For the day-to-day management of the courtroom and control over the judge's nature there is often little oversight.  n Kent's case, the judge was investigated by the Fifth Circuit and suspended for four months for actions that the Department of Justice later found to be criminal. 

The "oversight" by the Fifth Circuit certainly seems lackadaisical. One judge in Kansas requires that lawyers submit photographs of their expert witnesses in the clothing that the expert will wear to trial in order to certify those witnesses as experts. If the expert's photo is taken in a blue suit, and he shows up in a gray suit, the judge bars the expert from testifying. Even though there is nothing in any rule that permits the judge to do this, no one has taken the judge to the appellate court on this "local rule" because common sense says "when you shoot at the king, you have to kill him." No one wants to deal with a federal judge with wounded pride when they are the source of that wound.

The idea behind the constitutional principle of having judges appointed for life is to keep politics out of the courtroom. Of course, when Democrats appoint left-leaning liberal judges, and Republicans appoint right-wing zealots, politics inevitably finds its way into the system. 

If the Kent case causes you concern you can address your concerns with Congressmen John Conyers and Lamar Smith on the House Judiciary Committee. 

Fred Day (not his real name) is a client of mine.  He works in health care.  He worked long hours, and saved, and bought a home, and had a nice new car.  Then, in just a few weeks in 2005, it all fell apart.  The radiology group he worked for closed and he lost his job.  His wife became ill just a few months after their insurance lapsed, and thousands in debt piled up.  He sold his house.  He turned his car over to the bank voluntarily.  And he did the only thing he could think to do.  He returned home to his home state and moved in with family.

Over the next few years he worked harder than before.  He was more careful than before.  He tried to ensure that he saved more than he spent.  He did everything right.  He started to put away money for a new house.  Then, after he had put away some money, he started negotiating with old creditors paying them off one at a time to rebuild his credit.  And that's when his problems really started.  He started getting calls on debts that were three to five years old.  Then he got sued.  That's where we got involved.

The area of "collections" is not something most folks ever get to know, and no one wants to learn about it by living through it.  There are three kinds of collection agents:  in-house, agency, and distressed debt buyers.  Inside every major credit card or credit granting agency (GMAC, Ford Credit, Countrywide Homes, etc.) there is a collections department.  These are generally good people who want to work with debtors to help them restructure their debt and avoid foreclosures and repossessions.  In many cases they are successful.  However, when they are not, they refer the claim out to a company that does business as a collection agency.  A collection agency may be part of a law firm, or it may be a stand-alone agency that collects using the phone and letters.  The conduct of these folks is closely regulated.  The Federal Trade Commission investigates collectors who cross the line and break the Fair Debt Collection Practices Act.

It is the third tier of debt collectors, the "distressed debt buyer" that is the real challenge for consumers.  Although it may not be obvious to most people,  your account with Mastercard, your home loan, your delinquent phone bill, and your repossessed car note can all be sold to other persons.  The legal term for this is the "holder in due course," and the way it works is through a process called "assignment." 

Let's suppose you have an account with the South Bank of the Mississippi.  You charge $5,000 on your Mastercard, and run into trouble.  First you deal with the bank's in-house collectors, but can't get the matter resolved.  When your account goes past 120 days, and the collection agency can't get you to pay, or doesn't think it would be worth the time and trouble to go after you, the debt is "written off" by the bank.  In many cases the bank sends you a federal tax form indicating it has written off the debt (and causing you to pay tax on the $5,000 they "gave" you when they wrote off the note).

Along comes Creepy Capital LLC, a "distressed debt buyer" who says to South Bank, "look, we'll buy Mr. Consumer's debt from you for $50."  Since the bank knows it isn't going to get the full $5,000, and would like to get something, it takes the deal and transfers the note by assignment to Creepy Capital, LLC.  They now own a piece of paper (or more likely, an electronic file) worth $5,000 plus interest.

Creepy Capital checks your credit and finds you are still in debt.  So it holds the note for a year, checks again, and finds that now you're working at Our Lady of Perpetual Billing and have a salary of $40,000 per year.  It swings into action to collect its debt.

First it calculates interest on your note.  At 21% interest, a $5,000 note can grow to $7,000 in a year or so.  Now Creepy sends you a letter saying you owe $7,000.  However, if you act today, they'll settle it for only $5,000.  If you don't settle, they threaten to sue you.  You may get calls at work, calls at home, and calls on your cell phone.  In some instances they might call your employer.  They might call your neighbors and ask them questions that imply you're a deadbeat.  Many of them will stop at nothing to get you to pay the debt without a lawsuit.  They operate on the theory that the more intrusive they can be in your life, the more likely you are to want to pay them.  In many cases they will compromise the debt to half its value if they can get it quickly because, remember, they paid pennies on the dollar for what you owe.

When you cannot or do not pay, Creepy carries through with its threat and sues you, now asking for a total of $8,000 including attorneys fees, interest and court costs.  In thousands of cases every day across the country, lawyers walk into court and take default judgments because the debtor, who sees the case as hopeless.  Because the debtor can't imagine there's a way out, they just don't do anything.  Within weeks the debtor's wages are garnished, his car, or boat may be seized and sold at auction, and any money in his bank account is taken by the creditor until the debt is paid off.

But, in many cases, the debtor has lots of options and ways to defend the debt.  Remember Mr. Day?  He took out his car loan in a state with a three year statute of limitations.  A statute of limitations is a period of time prescribed by law that a creditor has to file a lawsuit.  In Mr. Day's case, the last payment was made in 2005, and the lawsuit was filed in 2009.  More than three years had passed, and the bank had not sued.  Since the suit was not brought in time, the creditor could not sue.  Mr. Day had a defense, and will ultimately prevail.

More importantly, in many of the cases, the banks or credit granting institutions had no document or paperwork that showed that the consumer ever signed any note.  In about 50% of these cases, the creditor could not prevail because an elemental part of the proof of such a case - the note signed by the debtor - could not be produced.  But unless a debtor seeks legal help, they usually do not know this.  I've helped people who were sued after ten years on debts that were so clearly outside the statute of limitations that the collection lawsuit amounted to a fraud on the court.   Lawyers call this debt "zombie debt" because if a debtor makes a payment on a ten year old debt, it reinstates the statute of limitations and can be legally collected.  More importantly, if the creditor sues and the debtor doesn't defend, even if the defense is later discovered it may be too late to assert it!   If you know someone who thinks things are hopeless, tell them to see an attorney.

The problem is that some third tier collectors like Creepy Capital don't stop with making calls and filing lawsuits.  Sometimes they threaten to send the sheriff out to arrest the debtor for fraud.  When they are later questioned in depositions about this, they say they meant to say that the sheriff was going to serve papers on the debtor, and that they never meant to scare the debtor.  But in fact, the collector often tells people they're going to jail if they don't pay.  NBC News recently had a special where the collectors impersonated police officers and threatened long  jail sentences for debtors.

You may wonder why such tactics work.  In most cases if you had to come up with $5,000 or go to jail, you could ask family or friends for help and get the money to avoid jail.  The collectors know this, and prey on you and your family in this way.  The tactics are against the law, and collectors that use such tactics are liable under the Fair Debt Collection Practices Act.  And a $1,000 fine under the statute is no more than a cost of doing business when a collector can get $7,000 on a debt he paid $50 for.    So the Creepy Capital type collectors flourish because their net profits are in the hundreds of thousands of dollars every month, even allowing for the money paid to collection attorneys.

If you have debt problems, see an attorney.  Sometimes bankruptcy may be an option.  If you're being sued, and you think the debt is an old or stale debt, see an attorney who may be able to help you turn the tables on the creditor.  In Mr. Day's case he is suing for thousands of dollars for violating the Fair Debt Collection Practices Act. 

Consider the case of Dennis Beville of Plymouth, Indiana. Beville was in need of assistance to eat and drink, and lived in a group home.  He had two aides who took care of him.  When he died suddenly under circumstances that were unusual, an autopsy was performed even though the home assumed the death was natural. Toxicology tests, however, showed the presence of alcohol (0.231 percent) and nicotine in his blood stream. Beville didn't smoke or drink (alcohol was prohibited at the facility). The autopsy blamed his death on acute alcohol intoxication in combination with an anti-seizure drug. 

Two aides were arrested and charged in the death, although the charges were dropped when the laboratory that did some of the testing in the case did not retain the samples for independent testing. The family has filed a lawsuit, and the lawsuit will examine how the young man was exposed to nicotine, and how he came to ingest alcohol under the care and supervision of the two aides.

You can almost see in your mind's eye how this event happened. Two bored people decided it would be fun to see how a developmentally disabled person was affected by alcohol. So they fed him way too much. In essence, they had time on their hands and they used it to destroy a human life.

Similarly, an aide in Kentucky pleaded guilty to a misdemeanor charge of elder abuse involving a patient in a nursing home.  The aide was able to get a felony charge reduced to a misdemeanor by cooperating with police. Her cooperation was sought because the abuse captured on camera by the resident's family showed that the aide was being supervised at the time she abused and neglected the resident. The prosecutors are apparently following the evidence to pursue other supervisory personnel for felony charges. When supervisory personnel become complicit in abuse, it is evidence of nearly complete abdication of responsibility by the administrators and assistant administrators.

The purpose of supervision in any type of health care facility is aimed at two goals: protecting the patient from bad conduct by others, and ensuring that employees meet the high standards set by the facility. That means that those who are tasked with supervision must do more than simply sit at a nursing station and ensure that tasks are recorded on patient records. They must go supervise that care. They must manage by "walking around" and overseeing the care. This is good not only because it ensures that standards are maintained, but also because it prevents tragedies.

I have often said that it is a shame that the women's shelters that help make sure battered and abused women have a safe place to go can't get into the headlines statements like "Murder Prevented Today." The fact is that when something doesn't happen, that isn't news.

But something close to that happened with a facility in North Platte, Nebraska last week. And it happened because the facility and its nurses were actively supervising their staff. According to media reports, a nurse's aide came into the facility clearly under the influence of some kind of substance. The nursing home facility immediately sent the woman to the local hospital for a drug test, and it came back positive for methamphetamine. The aide was fired on the spot.

The very next day the fired aide was cooking methamphetamine with her live-in boyfriend, and the two experimental chemists caught their home on fire.  he aide and her boyfriend escaped with their two children, and were later arrested for operating a meth lab in their home.

Sometimes the life of a lawyer is a difficult life. When I was a health care worker, about the most significant conflict I ever had was with a doctor or a nurse over what to do in a given situation. Usually disagreements like that are resolved by deferring to the most knowledgeable person. But I never took that kind of thing home with me, and it never affected the conversations I had with others.  Being a lawyer is a little different.

As a lawyer I am frequently called on to help clients who have difficult situations. That means I have to prepare them for depositions, and then defend them in the depositions. If a lawyer on the other side asks a bad question, I object. My job is to protect the record and make sure that what's being asked conforms to the rules of discovery and the rules of evidence.

Lawyers -- and this is true no matter whether they represent the plaintiff or the defendant -- ask bad questions all the time.  Sometimes those bad questions are a product of the discovery rules which, as much as possible, are designed to ensure an open flow of information.  Lawyers ask broad questions like "tell me about that" even though they could never ask a question like that at trial. Similarly, they ask about topics that could not come up at trial. Even though I could never ask someone at trial if they had been arrested, I can do it in a deposition because it might disclose a conviction I could ask about. 

Objections are important because if a lawyer does not object, and the person answers the bad question, all too often the information might come in at trial because the objection will have been "waived" by not having been made at the right time.

Sometimes I go through an entire deposition without once objecting. Other times I object a lot in order to force the questioning lawyer on the other side to make his questions plain.

It is perfectly acceptable for a lawyer to ask "what did you think about Mr. Jones' statement." The lawyer can even ask "what did you understand Mr. Jones' to mean by that." What the lawyer can't do - but which lawyers try to do all the time - is ask the witness (who is not Mr. Jones) what Mr. Jones meant by a particular statement:

Lawyer:          You saw the memo Mr. Jones wrote?

Witness:         I did.

Lawyer:          It said "you will be paid for all the time you work."

Witness:         Something like that.

Lawyer:          Well what did Mr. Jones mean by that?

At this point, as the lawyer, I object because it calls for the witness to speculate about what Mr. Jones might have meant. The lawyers haggle over the question, and eventually some revised form of it is asked in a manner that is not objectionable and the deposition continues.

But this training to parse questions closely is a hard thing to turn off. When your wife says something like "how do you feel about spaghetti for dinner" the lawyer sometimes says "are you asking me if you can make spaghetti, or for my feelings generally about spaghetti as a food group?" Spouses of lawyers tend to be frustrated a lot by what should be simple questions.

This past week I have been in depositions with a lawyer who frequently asks bad questions. So I have had to listen carefully to every question and object frequently. My wife knows when this is happening and adapts to my mood pretty quickly.

Last night, however, I went to Barnes and Noble for a magazine and got a glass of tea while I waited. As the two clerks were making the tea, they were conversing among themselves. I have no idea why I was listening, but a day's worth of depositions will do that to you. As I watched and listened, one of them asked the other a question:

Clerk 1:          Did I tell you about Steve?

Clerk 2:          Yeah

Clerk 1:          Did I tell you the whole story?

May God forgive me, I do not suffer fools easily. The absurdity of the question just struck me. The second clerk had turned around to face the questioner and I spoke up. "How in the world could he know if you told him the whole story?"

Both clerks looked at me -- the guy who wanted the tea -- and cocked their heads to the side like they were examining painting that didn't quite hang right on the wall. Then the second clerk said, "Yeah, that's right, how could I know if you told me the whole story. That's something only you could know."

I got my tea and went home. I decided when you start interrupting other people's conversations and pointing out the logical flaws in their arguments, that it has been maybe a day spent too long in the office.

The Journal of the American Medical Association has always been one of those prestigious publications cited by news media and by courts and lawyers in support of science or medical issues.  I have frequently cited articles from its pages in support of legal and medical principles.  But it has terribly damaged its credibility in its most recent editorial.

According to media reports, JAMA doesn't believe that the light of day should be shed upon its own editorial mistakes.  It believes that the best way to handle its errors is to hush them up.  In essence it warns readers that if they know of a conflict if interest, they should raise that with the journal and not with other media.  This is very much like the bank robber who blames the eye witness for his conviction, instead of blaming himself. 

The  editorial warning to "let us handle it" stems from a case involving a study published in JAMA by Robert G. Robinson.  Another researcher, Jonathan Leo, an associate professor of neuroanatomy at Lincoln Memorial University, in Tennessee, found problems in a study about the use of antidepressants in stroke patients.  Leo claimed Robinson didn't disclose a financial relationship with the maker of the drug involved in the study.  Leo brought the issue to the attention of the journal, but nothing happened.  He went public with his concerns in a letter to the British Medical Journal (BMJ).  This apparently blackened JAMA's eye and led them to issue the editorial warning.  Consider the way the JAMA editors phrased this:

"Although we appreciated Leo alerting us to the potential omission of some financial disclosure information by Robinson, we maintain that his actions were inappropriate in contacting the media and by his posting on the BMJ Web site prior to publication of the correction and letter of apology from Robinson. However, since Leo apparently did not appreciate the serious implications of his actions, despite our attempts to explain, we felt an obligation to notify the dean of his institution about our concerns of how Leo's actions were potentially damaging to JAMA's reputation."  

While JAMA's position seems tethered to the idea that "investigations take time" and that the media have no place in that investigation, such an attitude is sophomoric and self-protective.  Instead of lauding Leo as someone who spotted a serious breach of the Journal's editorial policies, JAMA has vilified him as a troublemaker and retaliated against him at his institution.  How does this advance the scientific process?

JAMA is reputed to be a scientific journal.  It requires peer review.  It should demand honesty of its authors.  Yet, JAMA appears more sensitive to protecting the pharmaceutical makers from a well-deserved black eye for using paid promoters to do clinical research than it does in protecting the integrity of its legitimate authors.  Is JAMA selling its editorial credibility along with  the advertisements for those pharmaceutical products that line its pages?  Is it more concerned with the bottom line than in keeping science and marketing separate?

I leave the reader to draw their own conclusions. 

While it is important to control media's access to a facility (see recent blog post), it is also prudent to recognize that in many cases, the media derives information from other sources, like police reports, and that staff members should be careful about what's said in those reports as that may make them witnesses.

Recently in Pittsburgh, Pennsyvlania, two nursing home residents behaved badly. According to the police report, as later broadcast in the media, the two female residents were in a nursing home common area. A gentleman was also in the common area, apparently singing. It may be that he was no Barry Manilow, or that the resident just didn't like the song, but for whatever reason one of the females attacked the man, hitting him on the head. When her friend saw that the woman was going after the crooner, she jumped in too, giving the victim what for. While there were no serious injuries, there were bumps and bruises and the police were called when the male victim insisted. 

When police interviewed the woman who commenced the attack, she said she had a bad memory and didn't recall what happened. Her friend said she didn't know what started it either, but when she saw her friend needed help, she jumped in. Both women were issued misdemeanor summons. The women can either pay a fine or appear in court and contest the charges. Of course, not having any memory of the event through no fault of their own, justice likely demands that the charges be dismissed. 

Resident-on-resident assaults happen. They happen even with close supervision. While it would be nice to think that with age comes wisdom, that is not the way to bet. Old folks can be cranky and combative at least as often as their younger peers.  Careful monitoring and interdiction, as well as dispute resolution strategies employed by nursing can help avoid full-blown altercations. But whenever possible, it is always a good idea to keep the matter out of the law enforcement area if at all possible. This is usually done by convincing the parties to patch things up if possible. Sometimes it isn't.

If a resident says "I want you to call the police," nothing requires the facility to do so unless there is an injury to the patient that requires medical attention. However, the facility cannot obstruct the resident's opportunity to call the police, and should never do so. But to the extent that the matter can be handled without police involvement, with proper reports made to the treating physicians and the matter handled by incident report, it prevents what is really a sad day in three patient's lives from becoming a newsworthy incident. Of course if medical treatment is required, a police report should be made to protect the facility from a later claim that the facility staff, and not some other person, caused the injuries.

When an assault occurs in a nursing home, employees become witnesses. The facility may have to permit them to testify in a criminal case. The media becomes involved. Attorneys become involved. There is almost no way that the nursing facility is not blamed, in some way or another, for what happened. If residents can be encouraged to talk things out and not file charges, it usually benefits everyone.

If a resident has suffered a serious assault - requiring medical treatment - a police report should always be made. This is necessary to protect the facility. If the scuffle has resulted in more hurt feelings than actual injury, a report should be discouraged if possible. But a patient should never be retaliated against for filing a police report.

The rules above, of course, apply only to those situations where the incident is resident-on-resident. If the incident arises out of staff-on-resident, or if there are allegations of a sexual assault, then the police should be involved from the inception. If a credible allegation of patient abuse is made, the patient abuse policy must be followed, and all steps taken to insure that a proper investigation is made.  And of course, all such incidents should be recorded on incident reports.

One thing facilities need to be better about, judging from the frequent lambasting that the industry takes in the news media and before congress, is dealing with the media.

It is not uncommon for a facility to get served with a lawsuit, which gets released to the press, and then see the facility administrator or director of nursing interviewed in the media.  In an era of ambush journalism, consenting to an on-camera interview with the media is never a good idea from both a legal and public relations perspective.

Recently, in Kentucky, a nursing home was sued for the death of a patient.  The newspaper's on-line edition posted a link to the PDF file of the actual lawsuit.  The lawsuit was ten pages long.  When asked about the lawsuit, the facility administrator said:

"we have just been served with a copy of the complaint and haven't had a chance to fully review its allegations."

It should take about 5 minutes to read a 10 page complaint.  Claiming surprise is not an effective way of dealing with the media.  The proper response to a request for comment on a lawsuit is this:  "We refer all calls on this matter to our lawyer.  We believe a jury will find we did nothing wrong.  We have no further comment."

Of course, the public wants to hear the administrator deny the charges.  In the response above, the administrator just looks like he's a slow reader. Had I been the reporter, I would have said "here's a copy. 

Take a minute to read it, and let me know if you have any trouble with the big words."  The facility administrator's response leaves room for additional questions. An aggressive on-camera reporter would have pressed for details. In these situations, the less said the better it is. If the facility director starts revealing facts that show that the facility is not to blame, the media runs to the family or the family's lawyer, who trots out all the facts that support liability. 

What would have been a one day story, and likely missed by most people, becomes a two or three day story that garners a lot more bad publicity. Thus the good thing about "no comment" or words to that effect is that by making no comment, you do not encourage the media to challenge your words.

Every facility needs to have a "public statements" policy. No employee is allowed to speak for the facility. Speaking to a reporter about the facility is breach of the employees' duty of loyalty to the facility.  If comment is solicited, only the administrator may comment, and that comment will always be to refer any request for comment to the attorneys handling the case. This prevents the reporter from creatively editing the piece.

Sometimes media trucks just show up and reporters want to bring cameras into the facility. While the facility will often want coverage for special events (Rock-A-Thons, etc.) it is important to have a policy that restricts the media's access and ability to film patients because of HIPAA. If the administrator needs to be interviewed (and most of the time the lawyers will tell you not to consent to this interview), the interview should occur outside the facility, not inside it.  If a camera crew is allowed to film inside the facility, they will often film conditions in a way that makes the facility look bad.

Media can be a facility's friend if used properly. But they can help the plaintiff poison the jury pool if not handled correctly.  

I often tell clients "if it sounds too good to be true, it probably is."  Nowhere is that more prophetic than in the phony "debt elimination" service scams currently being run around the country.  Whenever there are more debtors, there are more people who prey on debtors.  In many cases, these are companies without conscience.

"Reduce your debt by as much as 70%!  Eliminate your credit card debt without bankruptcy!"  The advertisements seem to suggest that you can simply take charge of your finances and eliminate debt.  They imply this is due to changes in the law.  But at the core of their programs are one of two different approaches: debt consolidation loans or quasi-lawful debt elimination tactics.

For a large number of the "debt elimination companies" the program they offer is really to get you into the front door, find out if you have assets like  houses and cars, and then offer you a secured loan on your property in order to refinance your personal credit card debt.  They only accept clients with debts over $10,000 because only in those cases can they derive a hefty profit.

Because you have credit card debt, your credit score may not be very high.  The service may use a loan provider who charges interest rates as high as 20%, and who secures the loan with a second mortgage on your primary residence.  Generally speaking, if you have dug yourself into a hole with debt, you have to throw away the shovel, not use it more often.  A debt consolidation loan effectively means that if you suffer additional credit issues, you're likely to lose your house, your car, and many of the things you've worked for.  For the vast majority of people, a debt consolidation loan, without a change in the behavior that led to the need for the loan, is merely a temporary fix.

Additionally, many of the debt consolidation loan providers do not negotiate significant discounts with the creditors.  If you look carefully at the ads and the disclaimers you'll see things like "...up to 50% reduction..."  In other words, at one time they got someone a reduction of that amount.  When you read the glowing testimonials "you reduced my $20,000 in debt to $5,000 which I paid off..." you'll see disclaimers later that say "results not typical."  Disclaimers are always in the fine print.

If you truly have credit card problems, the best solution may be a non-profit service like Consumer Credit Counseling.  These agencies do not exist to make a profit and have a good track record of helping people not only settle debt, but learn to make responsible credit decisions.

But far and away the worst possible type of debt counselor is the one who suggests that he or she can simply "eliminate" your debt.  The theory espoused by these folks is that in many cases, the creditor cannot prove what you owe, and that they'll be willing to take pennies on the dollar in order to settle your debt.  While it is true that in collection lawsuits many times the cases falter because of a lack of proof, the fact is that whether  the creditor's records will support a lawsuit later is not something your "counselor" can really know.  Only the creditor knows.

At the inception, these "debt elimination" agencies tell you to immediately stop paying your credit card bills.  They advise that after a certain time, usually about six months of not paying the bills, they will step in, negotiate a debt reduction, and help you pay off your debt. 

They will often agree to hold your payments - the payments you would normally have made - in escrow or trust accounts.  They will encourage you to borrow from your retirement or take out a second mortgage in order to put 50% or 60% of your current debt load in their "trust account."    They use that money to pay off the credit cards after six months, and return some portion of it to you.  For the six months that it sits in their "trust account" they pocket the interest on the money - not you!

The problem, of course, is that this refusal to pay your bills has an immediate effect on the quality of your life and on your credit rating.  Your credit rating affects insurance companies and how they evaluate your risk.  Your car insurance will go up because the insurer might rightly believe that people wreck their cars and claim injuries when they are desperate for money.  Your house insurance will go up because most arson fires are started by someone who wants some quick cash and considers an insurer a good source. 

It also affects your ability to live your life.  You won't be able to borrow money.  You won't be able to finance a car.  Your phone will ring off the hook with calls from credit card companies looking for their money.  You'll get letters from debt collectors.  All of them will threaten you with lawsuits.

The real problem is that the "debt eliminator" has no control over the creditor.  While the creditor is not likely to sue you within six months, nothing prevents a lawsuit after one or two months of no payments.  A lawsuit stands as an even blacker mark on your credit rating than does the missed payments.  If you get sued the debt eliminator has no obligation to defend you (it's in their contract).  You may also not be able to get back the money you put in trust to satisfy the judgment taken against you (it may already be spent).  And while many credit card companies will negotiate down a $10,000 account to $3,500 to $4,000 under the right circumstances, nothing says they have to.  If they demand their full penalties and interest, a $10,000 credit card debt can quickly become a $13,000 credit card debt after six months when the credit card company accelerates your interest rate as most of the contracts provide.

The safest way to deal with a credit problem is to go see a non-profit credit counseling service, or a lawyer who specializes in representing debtors.  All of the scams that sound too good to be true are, to one extent or another, too good to be true.  The devil is in the details (or the fine print) and you may later regret getting involved with a company that promises to help you, and winds up hurting you.

Health care workers are big on prevention. They get flu shots. They get their immunizations. They ask their patients to get their shots and eat right. Most believe that if you take care to prevent ailments, you'll live a happier life. In fact, a large part of the nursing profession is about teaching patients to be better advocates for their own care.

That makes me wonder why the same folks don't do a better job of thinking ahead and implementing a little preventative care on their own.

From the news wires this week:

• Pacifica man gets 6 months in jail for embezzling from nursing home residents
• Police arrest nursing home care taker
• Charleston Woman Pleads Guilty to Mail Fraud
• VA Nursing Home Thefts

Each of these stories follows a common thread. Patients left debit cards or checkbooks where nursing assistants, nurses, or other health care workers could find them. The workers, many of whom were making little more than minimum wage, took the credit cards or documents and used them for their own personal gain. Residents lost thousands of dollars, the corporate facilities will likely be forced to make good on the losses, and litigation regarding the failure of the staff to provide appropriate oversight is almost sure to follow. 

In addition, the workers, many of whom simply succumbed to easy temptation, are likely ruined financially and occupationally. Most will never work in the health care field again, even though they may have invested thousands of dollars and countless hours in getting their training.

But worst of all, each of these was preventable had the facility imposed the simplest of financial control mechanisms. Although a facility cannot take away a patient's money or property or superintend how they spend their money (except where the resident wants to use the money to break the law or interfere with other patient's quiet enjoyment of the premises), the facility can take measures to secure the credit cards and checkbooks of the patients in a way that ensures that the patient has easy access to their money, but those with a criminal intent do not.

Ideally when a patient comes in to the nursing home, the facility should take possession of any money or high-value property (rings, etc.) and place that in a patient account or safe deposit box.  Credit cards and check books should be secured in a safe deposit box. When the resident removes the credit card for his own purposes, (for example, for a home visit with a family member or a trip to the mall), the facility should log the change of possession and the date and time of return. The cards and checkbook should be collected and secured on return to the facility. 

If a question arises as to how or where the card or checkbook was used, the log will be powerful evidence that the instrument was secured at the time of the use, and that if fraud occurred, it occurred elsewhere. In the rare incident where the person securing the card uses the card for their own benefit, the ability to prove fraud and conversion--and impose employee discipline--is enhanced. 

The facility can also make a strong showing that it took all necessary steps to safeguard the resident's property. Any patient who objects to the safeguarding procedure should be allowed to keep the property under their control, but should sign a release of liability in favor of the facility in the event that someone takes or uses the cards without authorization.

Prevention is not something that needs to be practiced only in health care. In law, an ounce of prevention is always better than a pound of the cure.