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.