HIPAA — Are Healthcare Providers doing their own Version of Captain America’s 70 year “Sleep?”

 

hipaa-complaint

     One of my favorite of the recent spate of Marvel superhero movies is “Captain America: The First Avenger”.  In that movie, Captain America fights Red Skull to protect earth from utter destruction.  One scene near the end of the movie actually makes me think of HIPAA.  Captain America awakens in a 1940s-style hospital room. Deducing from an outdated radio broadcast that something is wrong, he flees outside and finds himself in present-day Times Square, where S.H.I.E.L.D.  Director Nick Fury informs him that he has been “asleep” for nearly 70 years.
     When we discuss HIPAA with healthcare providers, we find that many simply do not take it very seriously.  The “teeth” of HIPAA regulations seem not to have been vigorously enforced in the past, leading many providers to believe there is little reason to worry about the details, thinking it was all bark, but no bite. As time has gone by, while some physicians and groups have tried to stay updated and compliant, many have taken no steps whatsoever, actually creating more chaos.  For example, when we first moved back to Missouri a few years ago, my wife took our kids to the doctor for the first time, and she was asked to fill out one form and put all the kids’ names on it, so that the practice could request their records from Michigan.  When the Michigan office got the form they then informed my wife that she had to fill out a form for each child to request records.  However, our new Missouri doctor said that the Michigan office was just being “overly cautious,” and that the one form should have been all that they needed.  We finally got the kids records, but it was rather difficult when one practice took HIPAA seriously and the next office did not.
     Within the last few years or so, the Department of Health and Human Services seems to be putting much more emphasis on the “bite” of HIPAA, and essentially to try to wake up those ignoring the HIPAA legislation from their Captain America “sleep”.  In 2014, HHS started conducting audits to find out whether covered entities were complying with the law.  The audits found that only 2-5% of those audited were actually in full compliance with HIPAA.  After this report, the Office of Inspector General (OIG) recommended that HHS begin implementing a permanent audit program to ensure compliance with HIPAA.  The enforcement efforts of these two agencies are effectively waking up many who are covered by HIPAA from their Captain America “sleep”, but just like in the movie, that awaking is not a relaxed, easing out of bed, but a cold slap-in-the-face type of awaking.
     As the enforcement efforts expand, HHS began another round of audits this year, and will actually be increasing the number of audits that will be conducted. Several covered entities have received notification that they are among the first round to be audited.  As random audits take place, every doctor, group, hospital, clinic, and other covered entities required to comply with HIPAA must awaken from their Captain America “sleep” as well, or they could face massive fines being imposed upon them for non-compliance.
     When we speak with doctors about HIPAA, most tell us that the law is simply an annoyance with which they would prefer not to hassle.  When we explain our detailed system for providing complete HIPAA compliance protection, many simply rely upon the fact that they “have never been audited before”, so they assume that they’re safe and won’t ever be audited. We point out that, just as it is too late to buy malpractice insurance after one has been sued, it likewise makes no sense to take chances on HIPAA compliance by waiting to see what happens.  The “sleep” from which they may awaken the day an auditor shows up in their office will be a harsh and sudden, and far too late to prepare for what might come from the audit being conducted. Likewise, many also seem to believe that if they are audited, they are either already compliant enough, or that any fine assessed against them will not be significant. That belief tends to ignore the very statistics (noted above) regarding how few providers have actually been found to be in compliance through the audits already conducted.
     While the details of HIPAA law are rather complex, it is pretty straight-forward about some of the basics — what it is you need to have and need to do — to comply with HIPAA.  You must have a HIPAA policy and procedure manual specific to your practice (so those who buy generic “manuals” on the internet are still asleep, as those simply do not constitute full compliance).  You must fully train every person on your staff on those policies and procedures at least twice a year (and you can’t “sleep” through this process with a short pamphlet for the staff to read). Likewise, you must conduct a thorough risk analysis at least twice a year to look for vulnerabilities and make sure you’re staying in compliance. Given that this is the hardest part of HIPAA compliance generally, one can see why physicians haven’t “awaken” to this part of the process.
     Those who are subject to HIPAA laws need to continually monitor the ever-changing regulations to stay aware of any updates or revisions that need to be made to their manual, training materials, and the type of risk analysis to be conducted.  There is a lot to do to stay in full compliance and it is clearly time for physicians and healthcare entities to wake from their sleep in order to be ready. Otherwise, that awakening will seem much like it did for Captain America, with a shock-to-the-system type of reaction the day the auditors appear.
#confidential #dentist #doctors #HIPAA #liability #medical practice #medical records #patient’s privacy

 

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Save

Save

Save

Hospital Tort Liability to Third Parties for Failure to Diagnose Ebola?

??????????????????????????????????????????????????????????????????????????????????????????????????????????????

If the revelation this week that a patient in the United States has been diagnosed with Ebola virus is not scary enough, the news that the hospital at which the diagnosis was made actually sent him home days earlier without considering that diagnosis may be scarier still. Apparently, a patient landed in Dallas on a flight from Liberia (Africa) on September 20. After a few days visiting family, the patient started to feel ill, and finally went to the emergency room of Texas Health Presbyterian Hospital on September 26 with symptoms that were consistent with, among numerous other things, Ebola. However, the hospital discharged him that same day. Two days later, on September 28, he was taken by ambulance back to the same hospital, where he was admitted and diagnosed presumptively with Ebola virus.

What is currently cause for general public concern about whether his disease may spread may also ultimately be a tort lawyer “think tank’s” dream discussion topic. Does a hospital have a duty to protect the public – not just its patients – from contracting a contagious and potentially fatal disease? The Ebola virus purportedly does not spread through the air, but only by physical contact with the infected person’s bodily fluids. Moreover, an infected person is apparently not actually contagious until he/she becomes symptomatic, which may take up to 21 days from his/her own initial infection. In this case, the patient in question arrived in the United States symptom-free, but then developed symptoms within days of his arrival, and by the time he first presented to the hospital, was likely susceptible of passing the virus to others. From news accounts to date, it appears that during his initial ER visit, however, he either was not asked if he had recently traveled abroad, or that information was not fully appreciated or communicated, and as a result, an opportunity was missed to at least consider the possibility of an Ebola infection in their differential diagnosis. From the standpoint of medical malpractice law, such a failure to diagnose might expose the hospital to liability to the patient. But what about to third persons?

If during his two days between hospital visits this patient somehow infected others (sneezing or coughing in a movie theater, vomiting on a bus, passing sweat or blood to the skin of a passerby in a grocery store), do those individuals have a cause of action against the hospital? They were not the hospital’s patients – in fact, it is conceivable that some person who becomes infected lives many states away — so what is the hospital’s duty to them? No doubt it is cause for some alarm that the CDC is now aggressively trying to locate anyone who had contact with this patient before his second hospital admission. While the country holds its collective breath that this incident will be as isolated as this patient now is himself in the hospital, we all know how devastating a disease this can be. Those who contract it may suffer horrific symptoms and the death rate is substantial. Does an individual who suffers severe Ebola virus symptoms through contact with the Dallas patient have a claim for damages? Does a family that potentially loses a loved one to this horrible disease have any recourse? And if the disease has been passed broadly and injuries are wide-spread, what are the limits of the hospital’s potential liability?

In most states, “foreseeability” of potential harm is a key factor in tort liability. Several years ago, however, in the context of dangerous psychiatric patients (via a case from California called Tarasoff), healthcare providers were handed the responsibility of protecting third persons from foreseeable harms that might be caused by a psychiatric patient when the clinician had knowledge that the patient had the potential to injure or kill specific individuals. Over the years, that obligation has been eroded, revised, updated and manipulated from state-to-state, and probably does not serve as relevant comparison to the Ebola issue here. However, given the potential for extreme and widespread injury, will healthcare providers once again be held accountable for any injury they might have prevented, even beyond the walls of the hospital? For the population that lives in fear of what Ebola may bring, do viable claims for “negligent infliction of emotional distress” have merit?

We can only hope that Ebola is contained, not only in the United States, but in Africa, where it devastates large areas. From the tort law perspective, we doubt that any wants to see a case develop in which the “zone of danger”, for all intents and purposes, is the entire country.

 

 

“The Sky’s the Limit” – But How Much for Drones?

Drone flies from hotel near Space Needle

     In our last article, we reported on the rise in interest and use of personal drones or “quadcopters”. On almost a daily basis now, one can find a news story about drone incidents or videos of the stunning pictures that users can take from the sky, as they are increasingly being used to capture aerial footage. Such use poses privacy and trespass concerns, and there obviously are also safety concerns. However, drone usage seems to be outpacing the development of laws or regulations that might govern them

     It only seems logical that the Federal Aviation Administration (“FAA”) would be the first place to look for laws regulating the operation of drones. Surprisingly, however, attempting to do so is akin to playing a game of connect-the-dots without the benefit of the numbers. First, when the FAA’s regulations were initially promulgated over a half-century ago, nothing in them specifically regulated the operation of drones. Second, it was only over time that the FAA, in a piecemeal-fashion, started to address the operation of drones by issuing a series of “advisory circulars” and policy statements.

      Because of the ambiguity, vagueness, and over-breadth of these advisory circulars and policy statements, the regulation of drones currently remains in a state of flux. The FAA essentially stuck its regulatory nose in drone usage in a situation that ended in a case styled FAA v. Pirker. Raphael Pirker was contracted by the University of Virginia to shoot a publicity video of the campus, for which he used his camera-equipped drone. Upon learning of this, the FAA fined Pirker $10,000 for violating its regulations restricting the use of “commercial” drones. Last March, however, a federal administrative law judge sided with Pirker, holding, in essence, that Pirker’s drone constituted a model aircraft, and, because the FAA did not have regulations governing model aircraft, the FAA’s rules restricting the use of commercial drones were non-binding and non-regulatory. Rather, Pirker was subject only to the FAA’s “requested voluntary compliance” rules (FAA Advisory Circular 91-57) for model aircraft hobbyists: flying below 400 feet; selection of an operating site of sufficient distance from populated areas; and not flying the model aircraft within three miles of an airport without first notifying the control tower or flight service station. Since the FAA is appealing, the decision has, in effect, been stayed.

      The FAA has been tasked by Congress to design new regulations by September 2015 governing the use and operation of drones. In furtherance thereof, the FAA, in 2013, released its roadmap on the integration of unmanned aircraft into national airspace. Since last year, 13 states have enacted their own laws regulating the operation and use of drones. These state laws are not uniform and, although many are applicable to state agencies, some apply to private operators as well. In Tennessee, it is illegal to use a drone to photograph hunters and fishermen without their consent. It is illegal in Wisconsin to equip a drone with a weapon. Texas and Montana prohibit a private operator from using a drone to conduct surveillance of or photograph an individual on private property without first obtaining the individual’s consent. A drone operator in Oregon is prohibited from flying a drone less than 400 feet over another person’s private property without first obtaining consent of the owner or resident.

      So far this year, 36 states attempted to follow the 13 other states by introducing or attempting to pass legislation regulating the operation and use of drones. Many of these states will revisit these issues during their next legislative sessions. What this means is that, in order to fill in the void created by the FAA, more and more states are passing their own laws regulating the operation and use of drones, whether directed to state agencies or private individuals or both.

      Although a drone operator may be familiar with his state’s laws (or the absence thereof), he should become familiar with drone laws of other states when operating drones in those states. Coining an old (but still viable) adage, “Ignorance is no excuse of the law.” Recently a tourist in Seattle, Washington operated a drone from his fifth floor hotel room, photographing visitors on the observation deck (520 feet above ground) of the Space Needle. Fortunately for the operator, the State of Washington had no laws prohibiting him from operating his drone in this manner.

     As technology changes, so does society; and as society changes, so do laws. In other words, the drones are here, and not far behind are increasing (and differing) laws regulating their operation and use.

 

#drones  #remotely piloted vehicles  #quadcopter  #personaldrones  #FAA  #state laws

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.
The choice of a lawyer is an important decision and should not be based solely upon advertisements

Personal Drones Invade the Legal World

Drones Invade the Legal World

Personal Drones Invade the Legal World

     They are referred to as unmanned aircraft (“UA”), unmanned aerial vehicles (“UAV”), unmanned aerial systems (“UAS”), remotely piloted aircraft (“RPA”), remotely piloted vehicles (“RPV”), and remotely piloted air systems (“RPAS”). Some of these terms are uniquely distinguishable from others, but they have all been found to fall under one generic category – drones. After all, “a rose is a rose . . .”—and you know the rest. To further sub-categorize, drones fall into two classes: fixed-wing drones that fly similar to an airplane; and vertical take-off and landing drones (“VTOL”), which are similar to helicopters. Although some VTOLs have more than four propellers, a typical VTOL has four propellers and is often referred to as either a “quadcopter” or “quad.” The quadcopter is the most popular drone among private users of drones.

     With all of the publicity and discussion in the media about military drones, many people do not realize that individuals can purchase and own drones. Small quadcopters, about the size of an adult hand, can cost approximately $30, and have a range of up to 50 feet. Camera-equipped quadcopters, approximately 18 inches in diameter, can be purchased for as low as $150 while more sophisticated models can be of larger diameter and cost up to $3,000. Depending on the type of model and price, quadcopters can have a range of up to two miles and potentially reach altitudes of several hundred feet. Currently, no training or licensure is required to operate personal quadcopters. As a result of these factors, and the ease of take-offs and landings, quadcopters are gaining popularity in the recreational sector and certain businesses. One of the larger manufacturers of small quadcopters, DJI, is believed to sell approximately 10,000 units weekly. However, just as with the introduction of the automobile a little over a century ago, legal issues now loom on the horizon for drones and those who use them.

     In all likelihood, the most prevalent types of legal issues involve personal injuries and property damage. For example, in a recent incident, while a photographer was attempting to secure aerial photographs of a bride and groom using a camera-equipped quadcopter, he lost control of it and it hit the groom in the head, causing lacerations to his eye and cheek. [Fortunately for the photographer, the groom was very forgiving and understanding.] In another incident in Virginia, a quadcopter crashed into a crowd of spectators watching an event and injured four people. In Manhattan, a quadcopter flew into the side of a high-rise building and plummeted to the sidewalk 300 feet below. Likewise, an athlete in an Australian triathlon was seriously injured when a quadcopter collided with her. While some injuries are caused by operators losing control of the device, other injuries result from the quadcopter simply falling from the sky after exceeding its range limit or from battery failure.

     Aside from personal injury and property damage, using drones could result in other legal actions such as invasion of privacy and trespassing. Recently, in Portland, Oregon, a tenant spotted a quadcopter hovering outside a window of her 26th-floor apartment. As it turned out, the quadcopter was being operated by a developer who was photographing a site for a 20-story office building. One can imagine the claims that might be made if someone were to secure potentially embarrassing photographs of an individual who believes they are safely behind a high privacy fence.

     At this time, private use of drones have been banned in all of America’s 401 national parks. This past April, a quadcopter disturbed a herd of bighorn sheep at Zion National Park, resulting in the adults becoming separated from the younger animals. But as with other developing technologies and hi-tech toys, drones are here and are gaining in popularity. Recreational owners of quadcopters should be sure that they are covered by liability insurance. Although specific language about “drones” is almost certainly lacking (at this point) in most homeowner insurance policies, some policies will generally cover personal injury and property damage resulting from quadcopters. Owners of quadcopters should either read their policies or contact their insurance companies to be certain. While homeowner policies might cover private personal use, coverage may not apply if quadcopters are used for business purposes (e.g., securing photos for sale or business use, etc.). But there can be a very fine line regarding what constitutes a business versus personal use, such as farmers using drones for monitoring their crops. At this point, under general policy coverages, claims and lawsuits for invasion of privacy and trespassing might not be covered. Some insurance companies provide coverage specifically for the operation of quadcopters. However, the cost of premiums may depend on the owner’s training and expertise in the operation of quadcopters, as well as the use to which it is put. The bottom line: having fun with this hobby can come at a cost, a cost for which you should be prepared.

[This is the first in a planned series of articles on the subject of legal issues related to personal drones and their use.]

#drones  #remotely piloted vehicles  #quadcopter  #personaldrones  #personalinjury  #propertydamage  #invasionofprivacy  #trespassing

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.

The choice of a lawyer is an important decision and should not be based solely upon advertisements

The Last Word on Red Light Cameras in Missouri

http://www.dreamstime.com/royalty-free-stock-photography-red-color-traffic-light-image16973177      We previously wrote blogs on various red-light traffic ticket ordinances in Missouri and the fact that the Missouri Court of Appeals has ruled that various ordinances are in conflict with Missouri state law.  One such ordinance that was ruled invalid was the City of Ellisville, Missouri’s ordinance.  The Ellisville City Council just decided to end the use of its red-light cameras and will remove their red-light cameras and terminate their contract with American Traffic Solutions.

     Also, based on the rulings by the Missouri Court of Appeals, various other cities whose ordinances have been determined improper and the company that owns and operates the cameras on the traffic lights appealed the decisions of the Missouri Court of Appeals to the Supreme Court of Missouri.  The City of Kansas City and American Traffic Solutions, Inc. sought transfer to the Missouri Supreme Court, but this was denied.  (SC93907).  The City of Creve Coeur also sought to transfer a case to the Missouri Supreme Court, but that also was denied.  (SC93947).  What is interesting is that in September 2013, the Missouri Court of Appeals ruled that the City of Florissant, Missouri’s red-light camera ordinance was valid, and the plaintiffs who were ticketed appealed to the Supreme Court of Missouri; that request for transfer was denied as well.  What this suggests is that the Supreme Court of Missouri does not wish to hear issues related to red-light traffic tickets, although they could decide to review a case that was decided by the Court of Appeals if the case was decided on constitutional issues.

     It should be also noted that the City of St. Louis has always claimed that their ordinance on red-light traffic tickets was valid since it did not claim that “no points were assessed” but left that decision to the Department of Motor Vehicles.  However, St. Louis City Judge Steven Ohmer, recently ruled that the city ordinance was invalid.  See Sarah Tupper, et al. v. City of St. Louis, et al., 1322-CC10008. The order granted a preliminary and permanent injunction prohibiting the city from enforcing the red-light camera ordinance, sending out any notices of violation, processing payments on tickets, or sending collection letters relating to the tickets.  The St. Louis City announced that it would appeal Judge Ohmer’s decision.    We will continue to watch this matter and update our blog as events develop.

#redlightcamera   #missourilaw

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements

You Can’t Always Get What You Want — Or Can You?

http://www.dreamstime.com/stock-photo-pretty-young-girl-tiara-sticking-her-tongue-image6639870We have all read the headlines and gossip magazines about child celebrities suing their parents for the millions of dollars they claim their parents squandered of the child’s earnings.  But what if the child suing their parent is not a talented celebrity and not worth millions themselves?

Recently, a New Jersey Superior Court judge was faced with the dilemma of deciding whether an 18 year-old high school Senior, Rachel Canning, is entitled to monetary support including payments due for her private high school tuition and the expenses incurred due to Ms. Canning’s living with a friend, as well as potential college tuition next year, from her estranged parents.  According to the parents, the teen left their home voluntarily and moved in with a girlfriend after refusing to obey the “rules” of their home, which included such restrictions as a curfew, underage drinking, and their wish that she break up with a boy they deemed to be “trouble.” However, the teenager has a different story. Rachel claims that she was forced from the home after enduring “abuse” that purportedly contributed to her eating disorder that developed as her parents pushed her to obtain a basketball scholarship (reportedly worth $20,000). The judge denied her emergency request for monthly support, past-due private high school tuition, and attorney fees at the present time, but he will revisit the issues of this case, if necessary, later this year. For now, the teenager will remain on her parents’ health insurance and the college fund set aside for her, by her parents, will remain unchanged.

While we don’t have the answers for this tumultuous family, this case has our attention because this time it is not a celebrity child whose own money is at issue, but a child who has sued for money her parents earned to which she believes she is entitled, raising two key questions: (1) What are a child’s rights while living in their parents’ home; and (2) What does the law say about the parental obligations to support their child after the age of majority?

As we all know, children do not have all of the same constitutional rights as adults. Sure, children are afforded the right of due process and the right to counsel, but they lack the physical and emotional maturity to automatically be considered at the same level as adults under the U.S. Constitution.  Most states have a tiered system to assess the age of majority and levels of reasoning, because usually an 8 year-old and a 15 year-old child are not on the same spectrum of maturity. So what happens when a kid doesn’t want to live by their parents’ rules? Tough it out until he or she turns 18 years old, or seek legal emancipation. However, Rachel Canning wants the best of both worlds. According to her attorney she claims to be unemancipated and therefore still entitled to parental support. Her parents claim that she voluntarily left the home and is no longer within their control so should be considered emancipated.

If the court sides with Rachel, the issue will center on the constitutional rights of her parents. The 14th Amendment covers numerous freedoms, including the right to direct the education and upbringing of your children. Over the years, courts have been reluctant to infringe upon those parental constitutional rights without first determining whether the burden being imposed upon those rights – i.e. parents being forced to pay for rent and tuition when their child defiantly leaves their home because they don’t like the rules – is justified by a compelling interest.  In other words, a state cannot infringe upon the fundamental rights of parents simply because a better decision could have been made. And, if the law unreasonably interferes with the liberty of the parents to direct the upbringing and education of their children under their control, it may be deemed unconstitutional.  However, these general rules tend to be less clear or certain when the parents are in the midst of a divorce. Under those circumstances the courts will set guidelines for how much each parent must pay in support of their children living in their custody, including private elementary and high school tuition and sometimes college tuition, so long as certain criteria are met.

So what does this New Jersey case mean for rebellious teens and fed-up parents across the nation? That all depends on whether Rachel’s attorneys are able to prove that she is entitled to anything after she left home. Usually, there must be some special circumstances proven, such as abuse or neglect, to justify the court’s decision to usurp the parents’ independent authority.  So unless the New Jersey court finds evidence that substantiates the teenager’s allegations of abuse and/or neglect, the court is not likely to step on her parents’ toes.

However, the issue of future college tuition may be unrelated to the realm of abuse or neglect. Like most college-bound teenagers, they are faced with figuring out how to pay for college.  Since Mr. and Mrs. Canning did maintain a college fund for Rachel’s future, the presumption is that she has three options available for tuition, assuming she is not awarded a full scholarship for some reason: student loans, her “college fund”, and/or to pay for it herself. The judge indicated that a final decision on the issue of her parents’ college fund would come after the deadline to file the Free Application for Federal Student Aid (FAFSA). As most know, in order to qualify for federal and most private educational loans, both the parents and the child must submit their FAFSA to determine the extent, if any, of financial aid to which the child may be entitled.  The amount of financial aid offered to the unemancipated child is largely based on the income of his or her parents. If the parents refuse to submit a FAFSA, the child cannot secure any financial aid until they are legally emancipated. One “public service” website explains that teens who suspect their parents may have refused to submit a FAFSA because they have not filed income taxes returns should actually report their parents to the IRS and collect a reward. This stellar advice also instructs, “If your parents are sufficiently wealthy, the reward could pay for your education!”  As if Ms. Canning’s suit against her parents wasn’t already sufficiently harmful to the family dynamic…

If Ms. Canning does not qualify for federal or private student loans, she will almost certainly return to court over this issue, since her college dreams will depend on either her own payment of tuition (which she likely cannot make) or payment from the “college fund” that her parents’ established, to which  she believes she is entitled. Hopefully this case will not result in a new standard for parenting which would allow teenagers unbridled access to money their parents have saved over the years no matter what title they may give the account.

#emancipated minor   #parental rights  #college fund  #constitutional rights

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements

Is There Really a Loophole in Missouri’s DWI Law?

A recent front-page article in the Post-Dispatch reported on a potential loophole in Missouri’s DWI law.  By way of background, a driver who is ticketed for suspicion of DWI and has a Blood Alcohol Content (“BAC”) of at least 0.08% (more precisely stated as 0.80 grams of alcohol per 210 liters of breath) faces two independent proceedings.  One is the standard DWI criminal prosecution by the prosecuting attorney of the jurisdiction issuing the ticket.  The other falls to the Missouri Department of Revenue (“DOR”) and is a civil administrative proceeding under which one’s driver’s license may be suspended for up to ninety (90) days for driving with an excessive BAC.  [Not addressed in this blog is the outright refusal of a driver to submit to a BAC test which might result in the loss of one’s driving privileges for an entire year.]

http://www.dreamstime.com/royalty-free-stock-images-keys-cuffs-alcohol-image28780349How do you prove that a driver was actually under the influence of alcohol?  There are several ways available to the standard prosecution – erratic driving, field sobriety tests (reciting the alphabet backwards, slurred speech, smell of alcohol, bloodshot eyes, etc.), admissions or statements of the driver or witnesses, and the BAC test.  But the DOR administrative procedure relies exclusively on the BAC test.

 In order to use the BAC test result in either a criminal or administrative hearing, , the prosecutor and the DOR must prove that the test result was “reliable”, and make that showing by proof that it was administered in strict compliance with the standards adopted by the Missouri Division of Health and Senior Services (“DHSS”).  The DHSS has promulgated a 141 page BAC operator manual.  One of those standards is that the BAC machine must be calibrated at least every 35 days.  In the past, the State only had to show that the machine had been calibrated to either 0.10%, 0.08% or 0.04%.  But on November 30, 2012 the DHSS published a new rule (apparently by mistake or simply not having thought through the consequences discussed here) that provided the machine should be calibrated to the 0.10%, 0.08% and 0.04% levels.

 Now DWI defense attorneys are having a field day challenging the admissibility of BAC test results unless the machine was tested at all three levels.  Consequently, most judges across the state are throwing out the BAC tests.  The result of this is that the DOR is losing most of its administrative revocation cases. 

 The ultimate impact, if any, on criminal prosecutions is yet to unfold.  As noted, in a criminal prosecution the State will elicit testimony from the arresting officer who can be relied upon to testify that the driver drove carelessly, smelled of alcohol, stumbled, mumbled and could not recite the alphabet.  This testimony is usually supplemented with videos from the patrol car’s dash camera showing the field sobriety testing and from the booking process at the police station.  The defendant’s actions and conduct are often enough to show a jury that he should not have been behind the wheel.  So, even without the BAC results a jury can usually find that there is sufficient other evidence to convince them that the defendant was guilty of DWI.  But some jurors may wonder why the State has not introduced the BAC results and conclude that, perhaps, the test results were not above the legal limit and acquit the defendant.

 The DHSS purports to have corrected this rule on January 29, 2014, so now the rule clearly requires that the BAC machine only be tested at one of the three levels – just like the former rule was written.  See 19 CSR 25-30.051.  However, the new (old) rule may also be subject to challenge because the DHSS adopted the change as an emergency rule, and that process may not have been appropriate.  [That is well beyond the topic of this blog.]

A large number of questions still exist.  For instance, is the BAC test thrown out if the arrest occurred during the “and” period but the trial is held when the “or” rule is in effect?  What if the arrest occurred during the former “or” period, e.g. October 30, 2012, and the trial was held during the “and” period, e.g. October 30, 2013?  Maybe these questions will never be answered by the courts, but they underscore the importance of attention to detail when a state agency is drafting rules that control the admissibility of important evidence.

 We will continue to monitor this development and update our blog when we have more information.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements

#DWI  #missourilaw   #DWIlaw   #BAC

To Shovel or Not to Shovel, that is the Question

As you head out into the frigid temperatures to shovel the snow or throw salt on your driveway or sidewalk, you might consider your options.  According to Missouri law, homeowners do not have an automatic duty to remove the snow and ice. But before you throw away your snow shovel, you should know that there are at least three exceptions or situations by which you may have the responsibility to remove snow and ice.

http://www.dreamstime.com/stock-photography-accidents-icy-roads-image290640321. If the snow or ice is unnatural or something not found in the community generally, then you may have a duty to remove it. For example, if a pipe bursts and ice accumulates on your sidewalk, more than likely you are responsible for removing or correcting the hazard. If on the other hand, the snow or ice was formed by the forces of nature you may have no particular responsibility to do anything.

2. If a contractual obligation of some type exists, then you may have a duty to clear ice or snow. For example, some contracts or agreements, like a lease or subdivision restrictions, require you to maintain your sidewalk, driveway, etc., and often include the removal of snow or ice. Therefore, you should carefully review these documents to see if you have any defined responsibility to clear the wintery debris.  In some instances, homeowners may have a duty to their local municipality to clear their sidewalks.  However, the obligation to the municipality is often related to fallen tree limbs, trash, or other obstacles on walkways.  Local ordinances will articulate any such obligation, and you should make sure you are aware of the law in your area.

3. The most common situation that leads to responsibility to adequately clear snow and ice is when the homeowner voluntarily accepts the duty by removing snow and ice. Once you undertake the task of removing heaps of snow or throw salt around, you then establish a duty to exercise “reasonable” care in doing so. What is reasonable? Good question. Some case law suggests that if you clear off one small area of your sidewalk or steps, you may now be responsible for all of the snow or ice covered areas on your property. Even worse, you may be required to shovel more snow and/or throw more salt if, after you clear the walkway, more snow or ice accumulates. The idea is that if a walkway is in its “natural” condition, pedestrians will know to be careful. But, if the walkway appears to be cleared of the icy accumulation, the pedestrians will let their guard down and have a reasonable expectation that the area should be free of a dangerous condition.

So when you have braved the elements to clear your driveway or walkway, but then the pizza guy or overnight delivery driver slips and falls, you may still find yourself responsible for his or her injuries. There are various issues involved. Did you completely clear a reasonable pathway for pedestrians? Did the pedestrian use the pathway you cleared? Despite your efforts, did more snow or ice accumulate since you last shoveled and threw the salt? If there was more accumulation or you missed a spot, should any pedestrians have seen the slippery spot and therefore have used more caution themselves while walking in the wintery elements? There are too many variables to give a precise answer that applies to each case regarding whether you as the homeowner will be found liable for the delivery person’s injuries. Needless to say, winter weather provides not only a slippery surface upon which to walk, but a slippery slope of legal issues.

For a discussion about whether a commercial property owner or lessee has a responsibility to clear snow or throw salt on the sidewalk and parking lot in front of their business, see our next blog.

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

#snow  #homeowners insurance  #liability #Missouri Law

KANSAS CITY IS THE LATEST CITY TO SEE THEIR RED-LIGHT CAMERA ORDINANCE VOIDED

     In our most recent article, we commented upon Missouri’s inconsistent red-light camera rulings.  In Edwards, et al. v. City of Ellisville and American Traffic Solutions, Inc., ED99389 (2013), the Missouri Court of Appeals for the Eastern District handed down a ruling invalidating the “red-light camera” ordinance of the municipality of Ellisville, Missouri.  More recently, the Missouri Court of Appeals for the Western District has held that a similar Kansas City ordinance is likewise void and unenforceable because it “permits what state law prohibits – the classification of running a red light as a non-moving violation free from the assessment of points.”  The case is Damon, et al. v. City of Kansas City and American Traffic Solutions, Inc., WD75363 (2013). Red-Light Camera Ordinance Voided            Kansas City’s municipal government had been planning to amend its ordinance after the Ellisville ruling, but now those plans are on hold.  For the time being, Kansas City will not issue any “red-light camera” tickets, pending a clarification of the applicable law.  The City hopes the Supreme Court of Missouri will clear up the confusion.  Interestingly, however, Kansas City is still taking pictures of vehicles that run red lights in the hope their ordinance will ultimately be reinstated, after which they may try to go back and issue tickets to individuals who ran a red light.  If the Kansas City ordinance is found to be valid as written, then perhaps they can legitimately issue tickets later (a ticket is essentially a criminal “charge”, for which there are applicable statutes of limitations by which such a charge must be issued, and do not require them to necessarily be issued at the exact time of the offense). However, we believe that if the ordinance is held to be invalid (as decided under the Western District’s appellate ruling) but is subsequently “corrected” to comply with whatever guidance the Missouri Supreme Court may offer, drivers could not be ticketed for any violations occurring in the interim.  

            The Kansas City case is more interesting because of an issue not present in the Ellisville case – the plaintiffs in the Damon case claimed that American Traffic Solutions (“ATS”) had actually received a legal opinion, in advance, that the ticketing plan was “illegal” under Missouri law.  Consequently, the appeals court left standing a request for reimbursement of fines that had already been paid (plus a “convenience fee” charged by ATS) by prior-ticketed motorists (or, at least, the vehicles’ owners).  The claim is the City and ATS were unjustly enriched by participating in a scheme they had reason to believe was illegal.  This fits nicely with other claims by the plaintiffs that the City had adopted the red light camera ordinance only to raise money and that red-light cameras are proven to cause, not prevent, accidents.  It is also interesting to note that the law firm which had earlier opined that the plan was “illegal” continued to represent ATS throughout the ensuing litigation.

            We are aware of only one situation in the country where drivers who had paid red-light camera tickets actually received refunds.  The City of Minneapolis, Minnesota adopted a red-light camera ordinance and collected fines for about two years before the ordinance was found to be invalid by the Minnesota Supreme Court in State v. Kuhlman, 729 NW2d 577 (Minn. 2007).  A class action lawsuit was pursued in federal court for refunds, and a settlement was reached that ended up costing Minneapolis approximately $2.6 million paid to more than 14,000 drivers.  See, Shapira, et al. v. The City of Minneapolis, Case No. 06-CV-02190- MJD-SRN, United States District Court, District of Minnesota.  

            It remains to be seen how red-light camera ordinances and applications will be evaluated by not only the Missouri Supreme Court but the judiciary in other states. We think that red-light cameras are probably here to stay, whether for security, surveillance, the claim of “safety” or just to generate local revenue…but not without a fight in most instances.

#redlighttickets  #trafficviolations   #redlightcamera    #Americantrafficsolutions

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.

STOP! Red Light Confusion

Red light camerasRecently, in Edwards, et al. v. City of Ellisville and American Traffic Solutions, Inc., ED99389 (2013), the Missouri Court of Appeals for the Eastern District handed down a ruling invalidating the “red light camera” ordinance of the municipality of Ellisville, Missouri.  Curiously, the same Court upheld a red light camera ordinance in another St. Louis area municipality, Creve Coeur, in 2011.  In their opinion in the Edwards case, the court held that Ellisville’s ordinance violates state law, Section 304.281 RSMo., the statute governing traffic signal violations by drivers and pedestrians. Since that statute does not mention vehicle owners whatsoever, and Ellisville’s ordinance allows tickets to be issued to the owner of the car photographed by the cameras, instead of the driver of the car, the appellate court found that the ordinance was in conflict with state law.  The court also held that the Ellisville ordinance violated other state laws (Sections 302.225 and 302.302 RSMo.) as well, because running a red light is a “moving” violation under state law that requires the conviction to be reported to the Department of Revenue and points be assessed against a person’s license; the Ellisville ordinance classified violations of the ordinance as “non-moving infractions” for which no report would be made to the Department, and no points assessed.  This particular finding in Edwards differed from the holding in the Creve Coeur case; therefore, the Creve Coeur case was overruled and is no longer good law.  The court’s opinion in the Ellisville case made it clear that there would need to be a change in Missouri state law or a revision of relevant municipal red light camera ordinances to eliminate any conflict between an ordinance and state law.

The Edwards ruling could effectively invalidate numerous similar red light camera ordinances throughout Missouri, although it remains to be seen if the Western or Southern appellate districts would hold similarly, or if the Missouri Supreme Court will view the issue in the same manner as the appellate court did in Edwards and affirm that ruling.

It should be noted that the City of St. Louis claims their red light camera ordinance is valid as sufficiently dissimilar from the Ellisville ordinance because the St. Louis City ordinance allows vehicle owners to refute that they were actually driving at the time of the violation.  In addition, St. Louis City does not specifically attempt to classify these violations as “non-moving” violations, but leaves it up to the State of Missouri (which, presumably, will classify them as “moving” violations and assess points). 

The company that operates the Ellisville red light cameras plans to appeal the Edwards ruling to the Missouri Supreme Court.  Of course, the Ellisville ruling does not hold that red light cameras are per se unconstitutional, but simply that Ellisville’s particular red light camera ordinance, as written, is invalid.  Therefore, while this ruling by the Missouri Court of Appeals seemingly limits the effectiveness of red light cameras as a traffic violation deterrent, in reality, Ellisville and municipalities with similar ordinances can still amend their local red light camera laws to conform to the specific points highlighted by the appellate court. That is exactly what the City of St. Peters did as an immediate proactive response to Edwards, amending their local ordinance to start classifying red light camera convictions in their town as moving violations.

At least one local attorney went on the airwaves after the Edwards ruling to suggest that anyone receiving a “red light camera” ticket simply refuse to pay it. While that may not be bad advice in Ellisville itself pending revision of their ordinance, as a general proposition we think it may be misleading, and is likely to cause much aggravation, wasted time and money for people who receive a red light camera ticket elsewhere. We suggest that anyone who receives a red light camera ticket check the ordinance language of the particular municipality issuing the ticket, and/or seek counsel before presuming that red light camera tickets are simply invalid generally.

#redlighttickets  #trafficviolations    #Americantrafficsolutions    #redlightcamera

Nothing posted on Evidentiary Matters is to be considered legal advice or advertising.   
The choice of a lawyer is an important decision and should not be based solely upon advertisements.