August 2009 Archives

Family lawyers are more frequently checking out social networking sites like MySpace and Facebook for the inside scoop about their clients and their clients' soon-to-be ex-wives or ex-husbands.  Sometimes that can lead to incriminating information that can be used against you in Court.

I had a recent case where an ex-spouse was trying to reduce his child support obligation, claiming that he was not earning the income he used to because his new wife had taken over the business (let's call it XYZ Corp) that he started.   My client had information that this was not the case and the ex-spouse was really trying to divert income to artificially suppress his income for child support purposes.

When I happened to find someone who was the ex-spouset's Facebook "friend" and asked them to do some investigating for me, what turned up could not have been more revelatory.  Low and behold smack dab on the front page of his Facebook profile updated only a few days ago, he had listed "Occupation: Owner of XYZ Corporation."

This kind of diligent and free Private Investigator work paid off when we introduced his Facebook and MySpace profile in Court right after he testified under oath that he did not own the company anymore and had not advertised to anyone as such.  These kind of revelations sexually explicit photos included, can be harmful to your case and not to mention embarassing. 

It's not safe enough just to select who you are friends with and presume that an unassuming "facebook friend" will know your spouse's divorce attorney and give them access to your facebook page.

My recommendation is to either only post information that you wouldn't mind your spouse's divorce attorney seeing or keep off these social networking sites while you're going through a divorce.

For more advice see "Facebook and Divorce.  Social- networking sites are great for when you want to connect.  But what about when you split?"  TIME magazine June 22, 2009.

 

General Motors, pursuant to its Chapter 11 reorganization, was allowed to sell most of its properties to the new GM, leaving behind unwanted properties that contain environmental liabilities estimated at $530 million. GM has a $1.2 billion bankruptcy wind down budget to cover the clean up of these sites, but many fear that this is not enough, as that money will also be used to pay administrative fees, other claims, liabilities and bankruptcy attorney fees. If there is not enough money left over, the clean up fees will likely fall upon taxpayers.

Chrysler Group LLC had a similar bankruptcy and left behind environmental problems, but these are said to be no where near the scale of GMs contaminated sites. As you may imagine, other manufacturers have gone bankrupt before and left behind contaminated sites, but nothing of this magnitude.

As seen from my earlier blog article, GM was also able to wipe out current and pending product liability claims, and Chrysler was able to wipe out current and pending product liability claims, and any future claims for products manufactured prior to June 10, 2009. Those poor victims will likely fall on government plans such as Medicaid and Medicare, again leaving the taxpayer to foot the bill.

See below for a clip of WSLS coverage of my Roanoke soccer goal safety public interest piece.

http://www2.wsls.com/sls/news/local/article/roanoke_attorney_winchester_family_fight_for_soccer_goal_safety/44015/

Did you know that more Americans die each month from preventable medical deaths than were killed in the terrorist attacks of September 11th? Most people don't, and this fact has been known for over 10 years. Despite this knowledge, and the goal of the medical report that concluded this, evidence seems to indicate that preventable medical deaths are on the rise, not the decline.

That decade old report by the National Institute of Medicine indicated that over 98,000 people die each year from preventable medical mistakes. A federal Centers for Disease Control and Prevention study concluded that an additional 99,000 patients a year die from hospital-acquired infections. Experts conclude that nearly all of these deaths are preventable as well. Over ten years ago the Institute of Medicine report recommended a nationwide reporting system for medical errors. This was vigorously opposed by the American Medical Association and the American Hospital Association. To date, no national reporting system exists, and the Obama administration has not recommended one in its proposed healthcare reform project.

Why do we have reporting for automobile accident, fall, poisoning and firearm deaths and yet no national reporting for medical deaths and errors? According to this article, poisoning, firearms and fall deaths combined only account for 90,000 deaths and automobile accidents alone account for 43,600. One way for the public to determine if it is getting quality healthcare would be a national reporting system. That way, a person could look up his medical facility and take a look at the figures. You deserve this information, demand it. The only way it is going to happen is if the public demands it. Until that happens, special interest money will suppress it.

A recent news article I read indicated that from 1997 to 2007 physical education injuries were up 150%!! The study speculates that the increase may be due to a lack of supervision and fewer school nurses.

Six sports accounted for 70% of injuries: running, basketball, football, volleyball, soccer, and gymnastics. The researcher stated that instructors must get comprehensive training in injury prevention, and kids need to get safety education as well, McKenzie said. Schools must also insure that teachers and students use all appropriate safety equipment, she added, for example laying down mats for gymnastics.

I agree 100% with this statement. As seen from one of my earlier blogs, I just concluded representation of a family of a child that was killed by a portable soccer goal while playing for a northern Virginia travel soccer team. The child's coach was also a local high school coach and claimed to be unaware of the need to anchor or secure portable soccer goals. I found this to be simply amazing as the National Federation of High Schools' rules require that as does FIFA, the world governing body of soccer. This case just goes to exemplify that rules are of no value unless the instructors and coaches are being educated about them. My personal opinion is that this is not a priority in Virginia schools since the victim cannot sue the school for his or her injuries. In Virginia, the victim must sue the actual person whose acts or omissions caused the injury, and must prove that the person's conduct or omission was grossly negligent. This is a very high standard in Virginia, which results in very few lawsuits. Take some time to talk with your children and find out about their instructors and coaches. Is safety emphasized? Is protective gear utilized? Does the coach take time to educate the children about the sport and about being safe? If not, follow up with the principal of the school or the athletic director.

A widely used and painful treatment for spinal fractures caused by osteoporosis has been found to be ineffective in a new study. The procedure called vertebroplasty, injects a cement into the vertebrae. The procedure can cause serious injury or death if the cement seeps into blood vessels. One of the physicians who helped develop the procedure said he was shocked with the results. The study found the procedure to be no better than a placebo.

The studies were begun several years ago in the United States, Britain and Australia. It is too soon to tell whether this study will be affecting coverage of the procedures by insurance companies or medicare. I am always of the opinion that one needs to wait for the medical literature and studies to develop before you jump on the band wagon for a new procedure. Obviously, for some people, the choice may be death or the procedure. However, when it is not, studies such as this offer a good reason to wait.

I recently read an article that confirmed what I already knew, many doctors are making tons of money off of self referred work. An evaluation of a Urological Group revealed that the medical group had increased the number of CT Scans by over 700% for it patients after it bought its own CT Scanner. The article said that there were numerous other studies that showed that physicians that own scanners order more tests for their patients than those who do not.

With the debate over healthcare reform, studies like these are surfacing to show the increasing healthcare costs of unnecessary tests and procedures. The funny thing is that all I seem to have heard over the news are medical self interest groups blaming the attorneys for these increased costs, tests they deem necessary to cover their backsides. Doctors are not allowed to write prescriptions and then sell medications. Many say that they should not profit from imaging. I am inclined to agree. While the physician that owns his own scanner may be able to get that study done faster for you than referring you to a private group or hospital, one has to question the motivation. After all, the physician or practice group has to pay for the device and pay the operator of the machine. No one is in business to break even, and as this article indicates, this aspect of a physicians practice alone can make up a significant part of his income.

Not a week goes by where I don't get at least one phone call from a caller asking if he or she can sue their employer for their workplace injury. In Virginia, the answer is still no. If you are hurt on the job, even if your employer failed to give you safe equipment or failed to provide a safe workplace, your exclusive remedy is filing for workers' compensation benefits, which from my experience, are woefully inadequate.

There are several scenarios that allow you to file a workers' compensation claim and maintain a separate lawsuit, but not against your employer. For instance, if you are on the job, and involved in an automobile crash that is not your fault, you can file a lawsuit or claim (also called a third party claim) against the at fault party and file a claim for workers' compensation benefits. The bad news is that your workers' compensation insurance carrier maintains a lien against any recovery you may get, and you have to get approval of any settlement of your third party claim from the workers' compensation carrier. The comp carrier is required to pay you for its pro rata share of your attorneys costs and expenses, effectively discounting or reducing its lien. Another example would be if doctors committed malpractice in treating you for your injuries. In that instance, you could file your workers' compensation claim and maintain a malpractice claim against those physicians and/or the hospital. Again comp still has a lien, and still must approve any settlement. Frequently, the injuries to the worker are caused by a defective or dangerous piece of equipment. In that scenario, the worker or his family can file for workers' compensation benefits and file a lawsuit against the product manufacturer and/or seller. Again, comp still has a lien, and still must approve the settlement.

Lastly, in some instances, the worker may have been injured by another worker on the job site, who was not working for the injured workers' employer. In my opinion, this is one of the most complicated and convoluted areas of Virginia law. If the negligent worker is deemed an "other party" then he can be sued by the plaintiff. However, there are several "tests" used by the Virginia Supreme Court to determine if an employee is an other party and/or to see if the negligent worker's conduct was not part of the trade, business or occupation of the injured worker. There are frequent battles over which test applies to the workplace scenario at hand. Many times it seems as if each side can find a prior legal case in support of their theory, leaving it as a coin toss for the judge to decide. It is very important to make sure that you have a lawyer experienced in this area of the law. All too often I have had a person call my office advising me that their attorney had told them to settle their workers' compensation claim, because they had a such a good third party claim, when the victim had only to learn later that their third party claim was not very good and was in fact dismissed by the trial Court as barred. The end result was that the worker settled his workers' compensation claim too cheaply, banking on a third party claim that was anything but a sure thing.