Tuesday, August 12, 2014

Confidentiality of Medical Records: George Parnham Houston Attorney

Medical records have an unusual legal status in that they are not only a physicians’ primary business records, but also confidential information that is at least partially controlled by the patient. Unlike the traditional lawyer–client privilege, there is no common law physician–patient privilege.
Medical ethics has always demanded that physicians respect their patient’s confidences, and in recent years many states have enacted medical privacy laws. These laws usually limit the dissemination of medical information without the patient’s consent, but provide certain exceptions such as allowing for the discovery of medical information when the patient has made a legal claimed based on that information, or if the patient poses a threat to the public health.

These privacy laws modify the presumption that medical records, as a business record, are subject to discovery in cases against medical care practitioners. In cases where medical records are at issue in litigation against a medical practitioner (other than cases brought by a patient), medical records are protected from discovery unless the plaintiff can show a compelling reason why the records are necessary to prove the case. Even then, the court supervises the discovery and generally requires that all patient- identifying information be removed.
If the case is brought in federal court, such as in an antitrust or false claims case, then the state law protections do not apply. Although federal judges try to protect patients’ confidential information when possible, there are many situations, such as a Medicare fraud prosecution, where the complete records will be discoverable.

The federal government does not provide a general protection for medical privacy outside of federal institutions, but there is a federal law that protects records dealing with treatment for alcoholism and substance abuse.
The Federal Confidentiality of Substance Abuse Patient Records Statute, section 543 of the Public Health Service Act (42 U.S.C.A. § 290dd-2) establishes confidentiality requirements for patient records maintained in connection with the performance of any federally-assisted alcohol or drug abuse program providing alcohol or drug abuse treatment, diagnosis, or referral for treatment. The term "federally-assisted" is broadly defined to include federally conducted or funded programs, federally licensed or certified programs, and programs that are tax exempt. Certain exceptions apply to information held by the Veterans Administration and the Armed Forces. 

As part of the Conditions of Participation for Medicare/Medicaid and Joint Commission requirements, providers must protect patient confidentiality.

Rule 509 of the Texas Rules of Evidence states that:
 "There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding."

In Texas civil proceedings, confidential communications between a physician and a patient relative to any professional services are considered privileged and may not be disclosed. Any records of the identity, diagnosis, evaluation, or treatment of a patient that are maintained by a physician are also considered confidential.  The provisions rule 509 apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act.
Exceptions may be made in cases when the proceedings are brought by the patient against a physician, such as cases involving malpractice, or in license revocation proceedings when the patient is a complaining witness and disclosure is relevant to the claims (or defense) of the physician. Additionally, exceptions may be made in the following situations:

  • the patient or someone authorized to act on the patient's behalf submits a written consent; 
  • to substantiate claims for medical services rendered, if the records are relevant to an issue of the physical, mental or emotional condition of a patient when that condition is a part of the party's claim or defense, 
  • in disciplinary investigations or proceedings against a physician provided that the identity of the patient is protected,
  • in certain involuntary civil commitment proceedings, proceedings for court-ordered treatment or probable cause hearings,
  • in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution"

Wednesday, January 8, 2014

White Collar Crime with Richard Kuniansky

White-collar crime is defined as a financially motivated, nonviolent crime committed for illegal monetary gain. Although there has been some debate as to what actually qualifies as a white-collar crime, the term today generally encompasses a variety of nonviolent crimes usually committed in commercial situations. Many white-collar crimes are especially difficult to prosecute due to complex transactions. Examples include fraud, bribery, Ponzi schemes, insider trading, embezzlement, cybercrime, copyright infringement, money laundering, identity theft, and forgery.

According to the Federal Bureau of Investigation, white-collar crime is estimated to cost the United States more than $300 billion annually. Although typically the government charges individuals for white-collar crimes, the government has the power to sanction corporations as well for these offenses. The penalties for white-collar offenses may include fines, forfeitures, restitution and imprisonment. However, sanctions can be lessened if the defendant takes responsibility for the crime and assists the authorities in their investigation. Any defenses available to non-white-collar defendants in criminal court are also available to those accused of white-collar crimes. A common refrain of individuals or organizations facing white-collar criminal charges is the defense of entrapment.

The activities that constitute white-collar criminal offenses may be covered by both state and federal legislation; the Commerce Clause of the U.S. Constitution gives the federal government the authority to regulate white-collar crime, and a number of federal agencies including the FBI, the IRS, U.S. Customs and the Securities and Exchange Commission all participate in the enforcement of federal white-collar crime legislation. In addition, most states employ their own agencies to enforce white-collar crime laws at the state level.

To combat white-collar crime, the U.S. Congress passed a wave of laws and statutes in the 1970s and 80s. The Racketeer Influence and Corrupt Organizations Act (RICO), originally associated with organized crime, was also applied to white-collar crime. Under RICO, racketeering now includes embezzlement from union funds, bribery and mail fraud. RICO has made it easier to prosecute organizations and seize assets related to corruption, as well as allowing states or people to sue perpetrators for up to three times the amount of damages. Since the United States tightened its federal sentencing guidelines, white collar criminals now face longer sentences with less opportunity for early release. Opponents argue that white-collar crime punishment is too harsh, considering that white collar criminals tend to be first-time offenders.

Monday, January 6, 2014

Mail and Wire Fraud with Richard Kuniansky

Any criminal activity that involved the United States mail or electronic/digital communications is considered Mail or Wire Fraud. This includes the use of mail, television, radio or the internet in order to transmit false promises or advertisements to the public. Penalties may be up to $1,000,000 and 30 years in prison.

Mail fraud refers to any scheme which attempts to unlawfully obtain money or valuables in which the postal system is used at any point in the commission of a criminal offense. Mail fraud is a legal concept in the United States Code which can provide for increased penalty of any criminally fraudulent activity if it is determined that the activity involved used the United States Postal Service. This statute is often used as a basis for a separate federal prosecution of what would otherwise have been only a violation of a state law. Prosecution under the mail fraud statute must prove beyond a reasonable doubt:

  • That the statement is false;
  • That it was made with the intention it should be relied on;
  • That it was made for the purpose of securing money or property;
  • That the statement was delivered by mail;
  • That money or property was obtained by means of the false statement.

Wire fraud provides for enhanced penalty of any criminally fraudulent activity if it is determined that the activity involved electronic communications of any kind, at any phase of the event. As in the case of mail fraud, this statute is often used as a basis for a separate federal prosecution of what would otherwise have been only a violation of a state law.
The crime of wire fraud is codified at 18 U.S.C. § 1343, and reads as follows:
"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both."
 It is important to note that a victim does not need to actually be deprived of property or deceived for a conviction under the mail fraud or wire fraud statutes. The intent to deprive a victim of property is enough to convict. It also generally does not matter if the property in question is tangible or intangible: it can be enough to convict someone who intends to deprive a victim of their intangible right to control their assets. Each separate use of wire communication or the mail in furtherance of a scheme generally constitutes a separate offense.

Wednesday, December 25, 2013

Slip & Fall Litigation with Brent M. Cordell

"Slip and fall injury" or "trip and fall injury" is the generic term for an injury that occurs when someone slips, trips or falls as a result of a dangerous or hazardous condition on someone else's property. These cases fall under the broader category of cases known as "premises liability" cases. The term "premises liability" refers to a situation when an individual is injured on a property, or "premises" owned or maintained by someone else, and the owner or possessor of the property is held liable for such injury.
"Slip and fall" injuries often result from slippery conditions caused by water, paint, food or other slick substances on a walking surface. "Trip and fall" injuries may be caused by hidden hazards, poor lighting, uneven walkways or missing handrails.

Slip and fall accidents are covered by the law of negligence, and a key issue is what duty the property owner had towards the injured person in terms of protecting him or her from injury. Traditionally, the law distinguished among four categories of people who might be on someone else's property:

  • invitees (for example, a delivery person); 
  • social guests; 
  •  licensees (someone who is on the property solely for their own benefit); and
  • trespassers (for example, a vandal). 
The responsibility of the property owner to protect a person from injury depends on how the person was categorized. In most cases, the injured party must prove that the premises was in a "dangerous condition" when the injury occurred, and that the owner of the property knew (or should have known) of the dangerous condition. To establish this it usually must be shown that the owner created the condition, knew the condition existed and negligently failed to correct it, or that the condition existed for such a length of time that
the owner should have discovered and corrected it prior to the incident.

For a plaintiff to be successful in a slip and fall accident, they must typically prove the following:
  • there was a condition of the defendant's (landowner) property which presented an unreasonable risk of harm to persons on the premises;
  •  the defendant knew or should have known that the condition of his property involved an unreasonable risk of harm to persons on the premises;
  • the defendant should have anticipated that persons on the premises would not discover or realize the danger, or would fail to protect themselves against it;
  •  the defendant was negligent;
  •  the plaintiff was actually injured;
  •  the condition of the defendant's property was a direct cause of the injury to the plaintiff.
In addition, a plaintiff may prove negligence by showing that the property owner violated a relevant statute. For example, a building owner must ensure that his or her building's structure is in compliance with applicable building codes.

An injured person who slips and falls due to the negligence of another may be able to recover the costs of lost income and medical bills, as well as compensation for any pain and suffering or physical disability, among other damages. If you have been injured due to a dangerous condition or negligence on behalf of another party, contact Brent M. Cordell at www.cordell-law.com or call (713) 248-5265 for a free consultation. 

Monday, December 23, 2013

The Foreign Corrupt Practices Act with Dee McWilliams

In 1973 America was gripped by the Watergate scandal, one of the largest and most infamous in the Nation's history. Beginning with the arrest of five men for breaking and entering into the Democratic National Committee (DNC) headquarters at the Watergate complex on June 17, 1972, it would ultimately result in the trials and convictions of dozens of President Richard Nixon's top administration officials and the resignation of Nixon himself.

In February 1973 the Senate created the Select Committee on Presidential Campaign Activities (Resolution S.60) to investigate Watergate and other Nixon campaign abuses, and in May Special Prosecutor (Archibald Cox) was sworn in by the U.S. Department of Justice to direct the investigation. During the course of their work, the Office of the Special Prosecutor charged several corporations and CEOs with using corporate funds for illegal political contributions. The U.S. Securities and Exchange Commission (SEC) soon recognized the significance to public investors, and their own subsequent inquiry revealed falsifications of corporate financial records as well as secret “slush funds” being used for illegal foreign payments and other purposes.

The SEC eventually exposed further corporate abuses ranging from the outright bribery of high foreign officials to so-called "facilitating payments" made to government functionaries for certain ministerial or clerical duties. Major examples included officials of the Lockheed Aerospace Company paying over $14 million in bribes to various foreign officials in the process of negotiating the sale of aircraft, and the "Bananagate" scandal in which Chiquita Brands paid over $2.5 million in bribes to the President of Honduras to lower taxes on banana exports. By the culmination of the SEC investigation, over 400 U.S. companies had admitted making questionable or illegal payments in excess of $300 million to foreign government officials, politicians and political parties.

Originally the SEC wasn't directly concerned with the legal implications of bribery: the international business climate of the time had seen such payments as a necessity in order to remain competitive in a rapidly growing corporate environment. Rather, the specific concerns of the SEC were directed at the nondisclosure of such massive payments to investors; the hidden "slush funds" clearly undermined the integrity and reliability of corporate books and records, and the very foundation of the disclosure system established by federal securities laws.

Congress, however, was seriously concerned with the implications these payments had on U.S. foreign policy. The 1975 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Senator Frank Church, had been conducting their own investigation and in a series of hearings that year outlined the involvement of various government organizations including the FBI and CIA. And beyond issues of foreign policy, a "post-Watergate morality" was rapidly coming into play, causing concerns over international perceptions of the U.S. economic stability and the Nation's position as a global leader.

Between June 1975 and September 1977 approximately twenty bills were introduced to address the issue of foreign corporate payments: in March 1976 President Gerald Ford issued a memorandum to various federal agencies establishing a “Task Force on Questionable Corporate Payments Abroad”. Finally, after more than two years of deliberation, Congress passed the first law in the world governing domestic business conduct with foreign government officials in foreign markets.
The Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1) was signed into law by President Jimmy Carter on December 19, 1977 with the intended purpose of ending corporate bribery of foreign officials, and the restoration of public confidence in the American business system. It was amended in 1998 by the International Anti-Bribery Act of 1998 to implement the anti-bribery conventions of the Organization for Economic Co-operation and Development.


 The Foreign Corrupt Practices Act (FCPA) essentially addresses a) accounting transparency requirements under the Securities Exchange Act of 1934 and b) the bribery of foreign officials by persons connected to the United States, including:
  • U.S. businesses • Foreign corporations trading securities in the United States 
  • American nationals or citizens 
  • Residents acting in furtherance of a foreign corrupt practice whether or not they are physically present in the United States 
  • Foreign natural and legal persons in the United States at the time of the corrupt conduct 
  • Foreign firms and/or persons who take any act in furtherance of such a corrupt payment while in the United States.
Regarding accounting transparency, 15 U.S.C. § 78m requires companies with securities listed in the United States to meet specific accounting practices intended to operate in tandem with the FCPA anti-bribery provisions. Corporations covered by these provisions are required to keep books and records that accurately reflect transactions and to maintain adequate internal accounting controls.

The anti-bribery provisions of the FCPA are not restricted to monetary exchanges (the focus is on the intent of bribery rather than the amount), and may include anything of value given to a foreign official for the purpose of obtaining, retaining or directing business to any person or company covered by the law. Specifically, the anti-bribery provisions of the FCPA prohibit:

"...the willful use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a foreign official to influence the foreign official in his or her official capacity, induce the foreign official to do or omit to do an act in violation of his or her lawful duty, or to secure any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person." 

The definition of "foreign official" is broad; examples may include doctors at government-owned or managed hospitals or anyone working for a government managed institution. Employees of international organizations such as the United Nations are also considered to be foreign officials under the FCPA. The Act also governs payments to any recipient if any part of the bribe is ultimately attributable to a foreign official, candidate, or party. It does draw a distinction between "bribery" and "facilitation" payments, which are made to an official to expedite performance of the duties they are already bound to perform. Payments may also be legal if they are permitted under the written laws of the host country, or if they relate to product promotion. 


The U.S. Department of Justice is chief enforcement agency for the FICA, with the Securities and Exchange Commission (SEC) acting in a coordinating role. DOJ involvement in an FCPA matter is guided by the Principles of Federal Prosecution in the case of individuals, and the Principles of Federal Prosecution of Business Organizations in the case of companies. Generally, the following circumstances may trigger an FCPA investigation:
  • Unusually large commissions, retainers or fees 
  • Refusal to make FCPA-related representations 
  • Unusual methods of payments 
  • Promises of business by or from a government official 
  • Family or business relationships with a government official 
  • Payments of unusual contingent fees 
  • Political contributions 
Penalties for corporations and other business entities found in violation of the FCPA may include fines of up to $2 million; individual directors, officers, stockholders, employees and agents can be subject to fines of up to $100,000 and imprisonment for up to five years, although individuals are only subject to the FCPA’s criminal penalties for violations if they acted “willfully". These fines are imposed per occurrence, and individuals fined for violations of the Act may not be indemnified by their employer.

Both companies and individuals can also be held civilly liable for aiding and abetting FCPA anti-bribery violations if they knowingly or recklessly provide substantial assistance to a violator. The attorney general or the SEC may bring a civil action for violation of the FCPA, resulting in fines of up to $10,000 per violation against any firm, its directors, officers, employees, agents and stockholders. In addition, the SEC may seek to impose fines not to exceed (1) the gross amount of the pecuniary gain to the defendant as a result of the violation, or (2) an amount of up to $100,000 for individuals and $500,000 for business entities.
Under federal law, individuals or companies that aid or abet an FCPA violation are as guilty as if they had directly committed the offense themselves.


The FCPA contains an exception for "facilitating payments" for "routine governmental action," (also known as "grease" payments) intended as a defense for payments, gifts or tips made in facilitation of non-discretionary acts of lower-level officials as long as they have no discretion to award business to the party making the payment. If a defendant can assert that a payment was legal under the laws of the foreign country in which the payment was made, or that a payment was a reasonable expenditure directly related to promotion, demonstration, or explanation of products or services this may also be used as an affirmative defense.

Enforcing anti-corruption laws has become a major focus of law enforcement and regulatory authorities in the U.S. and other nations. Parnham and McWilliams represents clients in FCPA internal investigations, government enforcement and regulatory actions, and other international white-collar defense matters. For more information visit whitecollarfraudattorney.com or call (713) 224-3967 for a free consultation.

Sunday, December 22, 2013

Workplace Injuries with Houston, Texas Personal Injury Attorney Brent Cordell

On-the-job injuries are always difficult. In addition to the pain, stress and possible loss of income, the injured employee often has to communicate with the employer under the cloud of suspicion, anger and resentment. Many times, the employee feels pressured into receiving care from the company doctor. Other times, an injured employee may be hesitant to do anything at all, out of fear of retribution or termination.

Workers' Compensation provides benefits to workers who are injured on the job, or suffer an occupational disease arising out of and in the course of employment. The problem is that the compensation is often not sufficient to address the extent of the injuries.

In addition, not all employers in Texas subscribe to a workers' compensation insurance plan. Business that have chosen to "self-insure" and do not pay compensation are required to prove that 100% of the liability for an injury lies in the hands of the injured worker, or that the injury was caused by the negligence of a third party.
Even if you may have been partially responsible for your own accident and injury at work the insurance defense attorneys will not be allowed to enter your own negligence into evidence: a jury would only be required to consider any amount of liability on the part of your employer.
This opens up your workplace injury case to possible significant compensatory and punitive damages that workers' compensation insurance benefits might not cover.

Often, those injured at work will get inadequate compensation through Workers' Compensation and should look into third-party lawsuits for greater compensation.
Third-party lawsuits involve another party (other than the employer). For example, if you were injured by a saw, there may be a products liability case against the saw's manufacturer. Also, if a worker was injured on a construction site, another contractor could be liable. These cases require immediate attention and expertise because the responsible third party is often difficult to locate and the evidence (such as a piece of defective machinery) may need to be preserved. In more complex cases, the legal principles of Agency and analysis of corporate law can lead to sophisticated determinations as to who is technically an "employee" and who the "third parties" are in a given situation.

When you go to work, you expect that you are reasonably safe as long as you perform your job in the way you should, taking all reasonable precautions. This is true even when you are in a somewhat hazardous occupation. But accidents happen in the workplace as well, and sometimes the accidents are caused by existing unsafe conditions.
If you were injured on the job, you may be thinking about whether or not you should file suit. To take action, you need to be informed about your legal options. For more information contact Brent M. Cordell at www.cordell-law.com or call (713) 248-5265 for a free consultation.

Thursday, December 19, 2013

Business Torts with Brent M. Cordell

Business litigation involving tort claims can arise in many contexts, ranging from counterclaims in contract or employment litigation to shareholder rights disputes upon the departure of a key equity partner, executive, or professional employee. Tort claims can also figure significantly as an original claim or counterclaim in litigation related to the purchase or sale of a business or any other major event in the course of the operation of your business.

Business torts are civil wrongs that are committed by or against an organization, frequently involving harm done to the organization’s intangible assets, such as its business relationships with clients or its intellectual property. 
Misrepresentation is also a common type of business fraud, transpiring when one party intentionally falsifies a material fact in order to induce another party to perform or refrain from performing in a certain manner. In order to prove misrepresentation, the plaintiff must show that he or she relied on the defendant’s misrepresentation and was harmed as a result. Other types of business fraud include embezzling company assets, falsifying financial statements, and forging work hours.