By Jerry Bunkers on Flickr

Confidentiality exists between you and your medical providers.  This prohibits release of medical records without proper authorization.  The Health Insurance Portability and Accountability Act, usually referred to as “HIPAA”, places certain restrictions upon and guidelines for the release of medical information.

Releasing Private Medical Records

Under the privilege protecting medical records in most circumstances only the patient may authorize release of medical records.  However, there are times when others require release of the records.  When releasing medical records is required as a condition of receiving a benefit, the choice is allowing the release of the information, or, denying the release of the records, at the risk of not getting the benefit.

• After a car accident “PIP” or “Med pay” provisions from one’s own insurance company are available to pay medical bills.  There is a duty to cooperate with one’s own insurance company.  Specifically, application for PIP and med pay benefits requires signing of medical authorization release papers.
• Many government benefits also require signing of a medical release authorization by the applicant.  One example is social security disability, where medical records must be released in order that the facts and background of a claimed disability be reviewed.

No Private Right of Recovery for HIPAA Violation

HIPAA does not provide a private right of recovery for violation.  Where medical information is accidentally or otherwise released in contravention of proper authorization, the HIPAA law failed to establish a private right of recovery.  Those who fall victim to allegations of such violation are left to seek damages under state confidentiality regulations.

Choice Belongs to Patient

Common law medical confidentiality and HIPAA protect against release of medical records. However, the patient holds the key to release and the patient will find him or herself in positions where they will need to strongly consider signing authorizations for the release of medical records.

By Jerry Bunkers on Flickr

How can credit card companies charge 30% interest?  Didn’t there used to be laws limiting what interest rates companies could charge?  This is outrageous.

States can and do have “usury laws” limiting the amount of interest that can be charged by lenders.  The problem for consumers is a 1978 U.S. Supreme Court case invoking federal preemption in this area.  In the case of Marquette v. First Omaha Service Corp. case, the Supreme Court held that a national bank may charge the highest interest rate allowed in its home state, nationally.  So, credit card companies can charge customers living anywhere in the U.S. the interest rate in whatever state the lending institution selects as its domicile.

Following that decision, huge New York based Citibank relocated its base of operations to South Dakota, which had more lenient interest rate caps.  Other major lenders with credit card lending as a major part of their business moved to other high interest rate friendly states like Georgia and Nevada.

All interest rates, late fees or other costs and charges must be included in a cardholder agreement.  If so, then the national bank may export the higher interest provided for in their home state everywhere else.  Those new to the jaws of credit card lending practices are often shocked.  But, there’s nothing illegal about companies charging 20% to 30% interest.  The only specific requirement under federal and state law mandates full disclosure of the interest rate and all fees and charges.

© 2012 Eagle Tribune Corp.   Originally appeared in Derry News under “About the Law”.

By Victor 1558 on Flickr

The same insurance companies with TV ads featuring lizards, friendly hands and smiley faces also methodically feed injury claim information into a computer which crunches the data it feels like crunching and spits out a number.

Specific medical documentation is required to establish and optimize any recovery for injuries.  This is yet another reason never to do something as serious as a personal injury claim on the “do-it-yourself” plan.  Medical documentation is scrutinized not only by insurance company claims adjusters, supervisors and regional managers but more importantly by computer evaluation programs.

What Personal Injury Claim Evaluation Software Does

Only certain aspects of a personal injury claim match recognized evaluation components in the software.  Only some data adds to the settlement offer.  Before presenting any claim, my office reviews medical and other documentation, identifying and highlighting components that the insurance company will actually use in evaluation forms, data fields and evaluation software.

This has nothing to do with ‘coding’ or medical codes that health providers must include in their billing forms to get paid.  Personal injury criteria include things such as extent and duration of disability.  Another example: in a dislocation, the bone, the extent of dislocation, and even who diagnosed the dislocation make a difference.

Obtaining, reviewing and presenting medical documentation, knowing the claims process successfully resolved that claim.

Unfortunately, software technology is relied upon heavily by the insurance industry to come up with injury claim settlement offers.  This removes the vital human element.  The only way to have a fair shot is to have an attorney who knows what criteria count in the evaluation to correctly present your claim.

By Jerry Bunkers on Flickr

Loss of employment, illness and other circumstances can pile up bills.  Outrageous interest rates, charges and fees are enough.  But, over aggressive debt collectors top it off.  Rude tactics at all hours violate the law.

Abusive debt collection practices

Federal law prohibits abusive debt collection, defined generally as conduct by debt collectors where they “harass, oppress, or abuse”.  Specifically, debt collectors may not without identifying themselves.  They may not call before 9 am or after 8 pm. They may not call you at work.  Unless you give permission, these calls violate federal law.

The Fair Debt Collection Practices Act also requires debt collectors to stop calling if you tell them you want no further contact.  If you notify the collector that you are represented by an attorney and give the lawyer’s name and address, the collector then violates federal law by ever contacting you and not the lawyer.  Of course, your attorney has a duty to reasonably communicate.

Within five days of a debt collection agency’s first communication with you, often an annoying telephone call, they must send you written notice.  The notice must include information such as the amount of the debt, the name of the original creditor, and your right to dispute debt’s validity. If you do not dispute the debt within 30 days, they’ll tell you they will consider it valid.  If you do dispute, they must send you verification of the debt.

Debt Collectors Fined for Violations

In a 1995 case, a collection lawyer violated these rules and was fined over $10,000 by the court. The bill collector made up some language while trying to settle a debt instead of following the simple language of the law.

The law requires notice on all collections that they are an attempt to collect a debt and that information obtained will be used for that purpose.  Use care in conversations with debt collectors.  If you get too chummy, you may admit to charges you don’t owe.  Never admit to a debt without first requesting verification.

Compare the source of the debt and all charges against your records. Debt collectors may not make up fees and charges. Any charges piled on top of the actual amount of your debt must be included in your agreement with the original creditor.  Collectors may not speak to third parties about your debt.  And, collections must cease while a debtor is on active military duty.

Bankruptcy Option

If debt seems insurmountable it may be best to at least consider the bankruptcy option.  View the bankruptcy blog posts on this site or call for a consultation.

by David Boyle on flickr

When a case is settled, the document bringing the case to a close is usually referred to as a “full and final release”.  As the words imply, there is no going back.  Questions sometimes arise later, when the injured person finds new or persisting symptoms for whatever reason unknown at the time of the settlement.  Sometimes in hindsight the settlement just seems low.

Settlements must be carefully thought out.  Settlements are final.  Standard releases include language such as:

“I hereby release and forever discharge [name the defendant] from any and all claims, demands, rights, actions or causes of action on account of or in any way growing out of the accident.”

Finality of the release is further cemented with a provision foreseeing potentially unknown effects of an injury, terminating further recovery.  Here’s typical language:

“This shall release any and all personal injuries and consequences thereof, including death, and specifically including, also, any injuries which may or may not exist, but which at this time are unknown and unanticipated and which may develop at some time in the future, and all unforeseen developments arising from known injuries resulting from or to result from an accident that occurred on [insert date of accident].”

In case of any doubt whatsoever, a release ices the cake by characterizing the settlement as a “full accord and satisfaction”.  Accord and satisfaction is a valid legal defense that can be raised later, indicating that the claim has been extinguished and put to rest for eternity.

One question I get about releases is the wording that the release is not an admission of liability and also that the claim was disputed.  This is fairly standard.  It would be a rare insurance company that would allow a settlement without this common language.

A rare exception to the finality of a full final release occurs where there may have been forgery or fraud.  Every day garden variety “I had a lot of bills and needed the money, I was under stress” does not meet the extremely high burden of proving fraud.

Never even think about settling a personal injury case without retaining an experienced personal injury attorney.  Insurance claims adjusters are in a hurry to close out a file and can get a bonus for settling cases below a reserve set by the company.  Add that to the pressure to pay bills and there is a dangerous combination of grabbing money without comprehending the full true value of the matter.  An experienced personal injury attorney has a sense of what a case is worth and has been through the process enough to have perspective that will enable true optimization of the claim.

Bankruptcy Districts Essex County, MA

Where do we go for the creditors meeting after filing bankruptcy?

That’s a good question if you live on the Massachusetts north shore, specifically in Essex County.  Bankruptcy filers in Lawrence file petitions and attend creditors meetings in Worcester, MA.  However, those who file 19 miles away in Salem, MA file petitions in Boston and attend creditors meetings there.

That’s because Essex County is divided between two different divisions of the U.S. District Bankruptcy Court.  Some Essex County residents file bankruptcy petitions in Boston, while others file in Worcester. Boston is where petitions are filed and where creditors meetings are held for the Eastern Division of the Bankruptcy Court.  Worcester is where petitions are filed and where creditors meetings are filed for the Central Division of the Bankruptcy Court.

Here is a list of which towns are in which district:

If you live in the following towns, you are in the Eastern Division, meaning your creditors meeting will be in Boston: Amesbury, Beverly, Danvers, Essex, Georgetown, Gloucester, Groveland, Hamilton, Ipswich, Lynn, Lynnfield, Manchester, Marblehead, Merrimac, Middleton, Nahant, Newbury, Newburyport, Peabody, Rockport, Rowley, Salem, Salisbury, Saugus, Swampscott, Topsfield, Wenham, West Newbury

If you live in the following towns, you are in the Central Division and your creditors meeting will be in Worcester: Andover, Boxford, Bradford, Haverhill, Lawrence, Methuen, and North Andover.

The Eastern Division Court address is:

United States Bankruptcy Court John W. McCormack Post Office and Court House 5 Post Office Square, Suite 1150 Boston, MA 02109-3945

The Central Division Court address is:

United States Bankruptcy Court Donohue Federal Building 595 Main Street, Room 211 Worcester, MA 01608-2076

The above address is for the Worcester courthouse. But, the creditors meetings in Worcester are actually held at 441 Main Street, first floor, in a mirror-windowed high rise across the street from Worcester City Hall. There’s a multilevel parking garage in the back that connects.

New Hampshire Bankruptcy Filings

If you’ve read this far and you are filing in New Hampshire, things are much simpler there.  The entire state is covered by only one district.  All creditors meetings are held in Manchester, at 1000 Elm Street.

Shocked by apdk on flickr

Stress infiltrates our lives.  Between bills, demanding jobs, nerve-wracking traffic, getting kids to their activities and other worries, who isn’t stressed?

How do courts distinguish every day stress from trauma that crosses the line? For years, courts rejected emotional distress claims.  They feared “opening the floodgates”.

Foreign Objects in Food

People finding foreign objects in food often bring claims for emotional upset.  For example a woman eating Chinese restaurant take-out bit into a Band-Aid, sustaining understandable shock.  But, the resulting legal emotional distress claim failed in the courts.  There were no medical bills.  The appeals court explained that mental angst without physical symptoms fails to make a case.  

Outrage as Emotional Distress

But, if your last name begins with an “A” and the boss starts firing employees in alphabetical order, this does make a case.  This actually happened in a Boston restaurant.  The manager found the cash drawer was being looted and threatened that until someone confessed, he would fire the waitresses in alphabetical order.  Donna Agis was fired on the spot.   She went all the way to the Massachusetts Supreme Judicial Court, which ruled that the manager’s conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community.

Emotional Distress Bystander

A woman in the kitchen heard a horrible crash and ran outside.  Her daughter lay seriously injured in the road.  The father, hearing screams, ran outside.  Emotional distress claims by the parents were dismissed in Superior Court.  Mother and father weren’t direct accident victims.  They were bystanders.  Under previous law, bystanders had to be within what the courts called a ‘zone of danger’ created by the incident to have emotional distress claims.  In an earlier case in which a mother actually saw her six-year-old daughter being crushed by a truck, the mother’s emotional distress claims were dismissed because she was outside the zone of danger.  The court said public policy compelled it to hold a legal barrier against liability.  However, that barrier was broken in this case.  The New Hampshire Supreme Court ruled that a person who contemporaneously perceives a serious injury to a closely related person may recover for serious emotional harm.  (Corso v. Merrill, 1979.)

But, there are still many legal hoops to jump through.  Most important, emotional distress caused by negligence must also include objective physical symptoms, proven by medical testimony.

Objective Physical Symptoms Required

In a major Massachusetts class action case, women whose mothers took the drug DES to prevent miscarriages claimed emotional distress.  DES left the offspring statistically more likely to suffer an extremely lethal form of cancer.  But, the court said their fears did not meet the test of objective physical symptoms required in an emotional distress claim.

Every day stress and legally recognized mental harm were distinguished.  The court said recovery is denied for mere upset, dismay, humiliation, grief and anger.  The emotional harm must be a painful mental experience with lasting effects.  These general principles are now accepted in most states. But, change did not come without caution.  A dissenting justice in the above Corso case warned that the genie is out of the bottle. The judge hoped “someone will find a way to get him back in.”

Stress permeates our lives.  But, in a legal sense, courts recognize it only where conditions such as objective physical harm or true outrage, not the Hollywood variety, exist.

These cases are from Massachusetts and New Hampshire, where I am licensed to practice law.  And, there are significant differences in how emotional distress claims are handled from state to state.  But, the general concepts reviewed here are the issues addressed in all jurisdictions.

Bankruptcy Basics

There are two basic types of consumer bankruptcy, Chapter 7 and Chapter 13.

Chapter 7 cancels or “discharges” many types of debt.  Most credit card, medical, and other unsecured debts are discharged, as are most court judgments and loans.  Many filers find all of their debts discharged.

Debts not discharged include student loans, court imposed fines and restitution, child support, alimony and recent back taxes.

Two Bankruptcy Concepts:  Liquidation & Reorganization

Chapter 7 of the U.S. Bankruptcy Code is “liquidation”.  Debtors with property not covered by exemptions will find a trustee administering or liquidating property to pay creditors.  But in the end, most or all debt is discharged.  Usually, Chapter 7 bankruptcy takes about four months.  Many filers find most or all of their property exempt.  They make it through the process unscathed.

Chapter 13 is a reorganization.  The automatic stay of bankruptcy gives immediate protection against creditors upon filing.  Then, arrearages on secured loans and, depending on the case, a percentage of unsecured debts are paid in a chapter 13 plan over 3 to 5 years through monthly plan payments. Chapter 13 bankruptcy is for individuals only.  Chapter 11 bankruptcy is for businesses and for individuals with very large debts.  Chapter 12 provides reorganization for farmers and fishermen.

CHAPTER 7 BASICS

Credit Counseling

All bankruptcy filers must obtain credit counseling.  A certificate of credit counseling must be filed with the bankruptcy petition.  Agencies approved by the U.S. Trustee’s office provide counseling online, by toll free telephone number, or in person.

Means Test

Determining eligibility for the simpler Chapter 7 is done by computing average monthly income during the six calendar months before the bankruptcy petition filing date.  Compare gross monthly average to the U.S. Census Bureau’s ‘median income’ for your state.  If income is above the current median family income, then bankruptcy law requires completion of a “means test.”  There’s a form for this, the B22A.  The outcome determines eligibility for Chapter 7.

Petition

In addition to the means test and a bankruptcy petition, ten schedules, A through J are completed providing information about your property, debts, income and expenses.

If you are making payments on a car or other personal property, you have three choices:

• Agree to continue payments as before after your bankruptcy is final, so you can keep the property.  This is called reaffirmation.
• Give the property back to the creditor and the discharge wipes out the debt.  This is called a surrender.
• Pay the value of the property to the creditor in a lump sum and keep the property.  This is called a redemption.

Exemptions

In return for having your debts discharged, a bankruptcy trustee may sell any of your property that isn’t covered by exemptions.  Failing to claim a valid exemption can result in sale by the bankruptcy trustee to pay back at least some of your debt.

Creditors Meeting

After filing, court clerks schedule what’s called the meeting of creditors.  Sometimes called a “341 meeting”, this event is based in Section 341 of the U.S. Bankruptcy Code.  The meeting is held outside of court, in a separate hearing room.  A trustee assigned to your case runs the meeting.  No judge is present.  In most Chapter 7 cases, this is the only personal appearance the debtor has to make.

Bankruptcy basics summarized here can pose challenges.  It is highly recommended that an experienced bankruptcy attorney be retained to guide filers through the procedural and legal complexities of bankruptcy.  My office files consumer bankruptcy cases in Massachusetts and New Hampshire.

Prescription Error

A legal cause of action exists against a pharmacy that negligently provides the incorrect prescription.  It may be the wrong medication.  Other times the wrong dosage is indicated for the “right” medication.

Pharmacy error was relatively unheard of at one time but has actually become somewhat common with the increase of big box merchandisers entering the prescription medication business.  “Pharmacy technicians” or “pharm-techs” handle most if not all processing of prescriptions.  A staff pharmacist only “supervises” to some degree if at all.

If a physician’s directions are unclear, then without any question whatsoever it is the pharmacist’s duty to contact the provider who wrote the prescription to clarify the prescription prior to dispensing to the patient.

Negligence in providing an incorrect prescription requires proof that the entity breached a duty of care, and that harm resulted.  Such cases require medical evidence documenting:

(1) what went wrong, and

(2) what causally related damages exist, past, present and future.

My office handles personal injury and accident cases in Massachusetts and New Hampshire. However the general negligence concepts discussed above are relatively universal.

Turn Signals

Yes, turn signals are required under the law.  With degenerating driving habits this issue actually went all the way up to the New Hampshire Supreme Court, which reviewed the rules of the road embedded in state statutes.

A motor vehicle operator in Dover was in one of those left-turn-only lanes, stopped at a red light.  When the light turned green and a turn was made without a turn signal, police made a stop, found the driver impaired and placed her under arrest for drunk driving.

The issue is whether the police had reasonable suspicion to support stopping the vehicle and making further inquiry.  The driver argued that she was not required to use a turn signal because she was in a left-hand-only turn lane where there was already present a traffic control device warning motorists in the left turn only lane, and where it is physically impossible to take a right turn or to proceed straight due to road configurations.

But the court found the language of RSA 265:45 very clear, stating no person shall turn any vehicle “without giving an appropriate signal”.  The law requires a turn signal 100 feet prior to the turn.  The defendant also argued that there were no other vehicles around, so no turn signal was required.  That argument failed.

All police need to support a vehicle stop is an articulable suspicion, and the court found failure to use a turn signal was enough.  The case is State of New Hampshire v. Smith, decided March 23, 2012.

If that case seems obvious, another recent ruling at least seems somewhat troubling.  The court was taken back to the ice storm of 2008 when southern New Hampshire was coated with a glaze of ice and paralyzed for days with power outages.  A motorist driving through the intersection of Routes 28 and 111 where the traffic signals were inoperable was seriously injured in a collision.

The Supreme Court upheld dismissal of the man’s suit against the Town of Windham, essentially pointing out the roadways are state highways.  The town, having called the light failure in to the state, was off the hook.

The suit against the state was dismissed on different grounds.  ‘Discretionary function immunity’ relieves the state and its agencies from liability where conduct involves the exercise or performance of a discretionary executive or planning function.  Decision makers are immunized against liability where there is a ‘high degree of discretion and judgment’ involved in weighing alternatives and making choices with respect to public policy.

So the court agreed with the state’s position that deciding how best to allocate limited state resources in response to widespread power outages caused by a severe ice storm is a discretionary function.

My disappointment was that the case never used words like ‘pandemonium’ or ‘common sense’.  That’s why justices write decisions and I write a local newspaper column.  The case is Ford v. NH DOT decided February 24, 2012.

© 2012 Eagle Tribune Corp.  Originally appeared in Derry News, “About the Law” Column.