Articles tagged with: lawsuit

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.



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.

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How NOT to Utilize Social Media In Business

              Over the past few years, there has been a growth in the number of websites that allow customers, clients and patients to critique companies, services, and professionals, as well as an increased ability for people to use social media to express opinions, even anonymously. Since those with “gripes” tend to be more likely to get up on the internet soapbox, and reviews, therefore, may lean more negatively than supportive, at least one individual has gone on the offensive. A New York dentist, Stacey Makhnevich, required all of her patients, including Robert Lee, to sign an agreement preventing them from making public comment about her services. Interestingly, in “return” for this restraint of speech, Dr. Makhnevich promised not to do something that the law actually already requires of her, that being, not to exploit certain loopholes in the Health Insurance Portability and Accountability Act (“HIPAA”) with regard to patient privacy. How NOT to Utilize Social Media In Business

               Mr. Lee had a toothache and sought treatment from Dr. Makhnevich. Before treatment, however, she required that he sign this privacy agreement.  He did.  He was then personally billed almost $5,000 for dental services when the doctor’s office neglected to bill the insurance company for reimbursement. This put Mr. Lee on the hook for the entire bill, much to his surprise.  When Lee sought copies of his dental records, Dr. Makhnevich referred him to a third-party company which demanded $200 for a copy of his records. Not surprisingly, Mr. Lee was unhappy about this incident, and recounted his experiences on several websites where such reviews are accepted from the public.  He criticized Makhnevich for overcharging him, refusing to submit billing to his insurer, and told about the issue with the medical records, all of which were apparently true statements of fact.  In response, Dr. Makhnevich sent Lee a demand letter threatening to sue and seeking $100,000 in damages.  She then began issuing invoices to Lee charging $100 per day for “copyright infringement” which stated that a 1.5% late charge and a service charge of $20 would be imposed if not paid within 7 days. 

               Lee filed a pre-emptive suit in federal court.  Dr. Makhnevich responded with a motion to dismiss, taking the position that there was no controversy.  The court rejected this argument and denied the dentist’s motion to dismiss, citing the dentist’s aggressive attempts to enforce the agreement, using choice words and phrases such as “ridiculous, and “specious,” and one not often seen in judicial opinions…“wishful thinking.”  Mr. Lee’s case therefore remains pending before the court. 

               Although it may be tempting to try to use the force of law to fend off public criticisms of a business, profession, or service, it is certainly not clear that such a heavy-handed approach would be effective in that regard.  In fact, such efforts will invariably become public themselves, and are likely to be viewed as bad faith attempts to suppress one’s “freedom of speech” and hide honest opinions about poor service or conduct.  Dollar-for-dollar, it would seem that a business or professional would likely get a better return from an investment into efforts designed to improve customer service, rather than suppression of customer speech. After all, clients or customers who are unhappy are going to ultimately have their say, and clearly have a right to their opinions and to publicize them, whether via the internet, the water cooler, a social gathering or up on a real soapbox in the public square. Better that they should have a very simple and limited issue of general dissatisfaction than to be able to say that the business is trying to shut them up.

We will follow Mr. Lee’s case as it develops to see if the Judge makes good on his prophetic statement that this dentist’s arguments may be wishful thinking.  Lee v. Makhnevich, No. 11 Civ. 8665 (PAC), (S.D. New York, March 27, 2013).

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 answer the door and a man hands you an official document and says “you’ve been served”. In your quivering hands are a summons and lawsuit papers. What do you do? This is not the kind of question you want to consider for the first time after the faYOU'VE BEEN SERVEDct. It is important to know how to conduct yourself prospectively in this situation to prevent any missteps. Do not panic or argue with the process server. He can’t (and likely won’t) help you. Accept service of the summons, but only if you are the correct individual the process server is attempting to serve. Do not accept service on anyone else’s behalf.

Avoid the temptation to immediately call your spouse, your best friend, or your boss. More importantly, strongly resist the additional temptation to simply vent to the nearest random individual. And perhaps most importantly, do NOT post anything about the summons served upon you, or the suit being brought against you, on any social networking website. Many people, especially those being sued for the first time, read the allegations in a lawsuit petition and are so personally offended or surprised by the allegations that they want to call the attorney bringing the suit to say “this isn’t true” or “it didn’t happen like that”. Keep silent and keep your fingers away from all keyboards, including that tiny one on your phone.

When you can no longer feel your heart pounding in your chest, read the summons and suit papers carefully. Make some notes for your attorney of what you believe are the most important points, especially as they relate to the allegations against you. These notes should be prepared for your attorney so that they remain privileged from discovery, and to help you and your attorney prepare your defense. If you already have an attorney, contact him promptly, since suit papers are time-sensitive and a formal responsive pleading must usually be filed within 30 days (sooner in some jurisdictions).

The issue or event over which you are being sued may not be fully known to you. In fact, it may be something for which you have insurance coverage. Do not presume that is not the case. Pull out your auto, homeowners, professional liability (if applicable) or other policies and contact the claims departments immediately to report the suit, because if you do have coverage for the allegations in the suit, timely reporting that to your carrier is also critical. If your carrier acknowledges that they do cover you for the allegations, they will likely assign a defense attorney to you, but you can also work with your own personal counsel at the same time. To help either your assigned or retained counsel, try to promptly locate any documents or records that you believe may be associated with the claim asserted and place them in a secure location. You are building a file to take with you to your attorney’s office.

Do not discuss the details of the suit or any of the allegations raised in the case with anyone besides your attorney. Your discussions with your attorney are protected by attorney-client privilege, but statements you make to anyone else are not. No matter how irrelevant or innocuous you believe your conversation with someone else may be, you should understand that the contents of any such conversations are discoverable. That means that you may later have to sit through a painful deposition listening to your casual words – flippant, confessing, insulting or otherwise — repeated on the record by the person with whom you spoke.

Those are the basic “rules of conduct” when you are served. Don’t panic, maintain silence, collect relevant documents, contact your insurance carrier, and call your attorney. Once the suit papers are in your hands, the outcome of the suit may be out of your hands – but you still play a vital role in assisting in your own defense.


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.