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"
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.
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.
"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.
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.
Actions:
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.
Penalties:
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.
Defense:
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.
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.
e
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.
