30
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2016
Florida Braces for Rate Hikes, Litigation Due to Workers’ Compensation Fee Ruling
By Amy O' Connor | April 29, 2016
The Florida Supreme Court’s ruling that the state’s current attorney fee limits are unconstitutional will have serious ramifications on the workers’ compensation market in the state, according to Florida Insurance Commissioner Kevin McCarty and other workers’ compensation experts.
Those ramifications will include and are not limited to a significant amount of new litigation concerning old workers’ comp cases.
McCarty also said he expects insurers will seek a significant rate increase because of the ruling.
“Obviously we are deeply concerned,” McCarty said shortly after the ruling was announced. “Limiting attorneys’ fees was an important part of the cost containment reforms that were passed [in 2003]. This decision will have a destabilizing effect on the workers’ comp market litigation fee.”
Court Ruling
The state’s high court ruled on Wednesday that the fee schedule passed in 2009 is unconstitutional under both Florida’s and the U.S. Constitution as a violation of due process. It ruled in the case of Marvin Castellanos, an injured employee who sued his employer Next Door Co. and its insurer, Amerisure. The high court noted that the issue has also been raised in as many as 18 lower court cases.
The Castellanos court ruling said the current schedule eliminates the right of a claimant to get a reasonable attorney’s fees – a “critical feature” of the workers’ compensation law. The court said the statute violates due process by installing an “irrebuttable presumption” that whatever fee the schedule comes up with is reasonable and by not providing any way for a claimant to refute the fee.
McCarty, whose last day in office may be next week, said the Florida Office of Insurance Regulation (OIR) will start work immediately with the National Council on Compensation Insurance (NCCI) to evaluate the impact this decision could have on policyholders. He said he expects NCCI will submit a rate filing with a significant rate increase because of the ruling.
He also expects Florida lawmakers to call an emergency session to develop a legislative remedy to counteract the court’s decision and its repercussions.
“This ruling could lead to more cases of litigation,” McCarty said. “It could also affect a critical part of the economy as businesses look at the cost of workers’ comp in the state.”
McCarty said OIR will work on finding a solution that works for everybody, but the answer, he said, is not within the judicial system.
“We need to look at what specifically the court felt was flawed about attorneys’ fees and see if there is any reasonable way to address that, or what we can do to address injured workers seeking attorneys’ in the first place,” he said. “If the burden to assist them lies on the judiciary system, that will be prohibitively expensive for businesses and prohibitively expensive for the system.”
New Litigation
Allison Hartnett, senior partner with Walton Lantaff Schroeder & Carson in Miami said the ruling will open the floodgates to new litigation.
“The court did emphasize that only in cases where the claimant can demonstrate that the fee schedule results in an unreasonable fee, will the claimant’s attorney then be entitled to a fee that deviates from the statutory fee schedule,” she said. “Any claim with any date of accident will be subject to this ruling.”
Kimberly Fernandes, partner in the Tallahassee office of the law firm Kelley Kronenberg, said the decision takes the workers’ comp market full circle back to 2008 when the Florida Supreme Court opened up attorney’s fees to an hourly option in the Murray v. Mariner Health case.
In that instance, she said, the Legislature quickly reversed the decision by amending the statute to require a statutory calculation dependent only upon the amount of benefits obtained.
“Time will tell if the Legislature desires to repeat history by amending the statute again,” she said. “Regardless, we are sure to see a revival of attorney fee litigation right now, as claimants’ attorneys dust off their old but viable claims and start seeking hourly fees instead of the statutorily calculated fees on benefits that were obtained for their clients ages ago.”
Pre-2003 Reform
McCarty said before workers’ comp reforms were passed in 2003, Florida was among the highest for litigated workers’ comp cases in the country. Addressing the attorneys’ fees was just one of the changes that was made to enhance the workers’ comp system overall. This ruling could derail all of those efforts by undermining the current system and driving costs back up.
“When you have a system where your administrative system is working, then you aren’t as reliant on a judicial system and attorneys to administer benefits,” he said.
According to the OIR, until the legislature addresses this decision, attorney fees will be evaluated under the “reasonable” award standard articulated in the Murray v. Mariner Health decision.
Other Cases
On the same day that the attorneys’ fee schedule was struck down, the workers’ compensation system may have dodged a bullet as the same court declined to rule in another closely-watched case brought by an injured nurse that challenged the constitutionality of the state’s entire workers’ compensation system.
In the case of Stahl v. Hialeah Hospital, the Supreme Court said simply, “After further consideration and hearing oral argument in this case, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we dismiss review.”
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23
četvrtak
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2016
LITIGATING THROUGH THE EYE OF A NEEDLE: A CLAIMS EXAMPLE
Posted: September 21 2015
When an insured acupuncturist met with Patient X for the first time, the patient complained of insomnia and general body aches and pains. The acupuncturist worked at a very large massage clinic, and it was the clinic’s internal procedure to insist that all new patients receive a full explanation as to the nature of and the risks inherent with the proposed treatment. The patient was required to sign a patient acknowledgment and consent form prior to any treatment being performed. The consent form specifically advised the patient that results are not guaranteed, and that risks such as minor bleeding, bruising, pain, nausea, fainting, infection, and perforation of internal organs are possibilities with any acupuncture treatment. The acupuncturist explained the treatment she was proposing, as well as the risks involved, and asked Patient X to sign the consent form. Patient X waved her off and advised he was in a rush and didn’t have time to read and sign the document. He would read it at home and bring it in signed the next time. The insured proceeded to perform the treatment. Patient X returned six more times for treatment, each time failing to bring the consent form, but promising to read it and sign it for the next appointment.
On the last appointment, Patient X brought his girlfriend with him. While the needles were inserted, the Insured had to advise Patient X multiple times to remain prone and not to move, as Patient X kept on moving around while carrying on a heated conversation with his girlfriend. After the needles were removed, Patient X stood up and advised that he felt faint. He then complained of severe chest pain, nausea, and trouble breathing. The Insured immediately called an ambulance. Patient X was diagnosed with a punctured lung and was treated in hospital for 12 days examples of litigation.
He then commenced an action against the insured alleging negligence and seeking $150,000 for pain and suffering, as well as special damages, loss of future income, costs, and interest. The Insured reported the claim to Trisura. Trisura confirmed that coverage was available for this matter, and retained experienced counsel to represent the Insured. During the course of litigation, Patient X maintained the position that the risks inherent with the procedure had never been explained to him, and that he had never seen, nor been asked to sign a consent form. The Insured disagreed. Patient X insisted that he would not have agreed to treatment if he had known all the risks. He also denied having moved at all during treatment, and said that he had not spoken to his girlfriend while the needles were inserted. It therefore became an issue of credibility between the parties.
Given the facts, and in particular, the failure to follow proper clinical procedures and insist on a signed consent form before treatment was even commenced, settlement negotiations commenced to avoid a lengthy trial and a probable finding of liability against the Insured. The matter settled for $42,000. In addition to the settlement amount, the insured’s defense costs were in excess of $20,000. Trisura retained counsel, paid the legal fees, and paid to settle the claim.
What is wrong with our elected officials in Clarksville? We have a city mayor who is threatening to sue the county mayor over a situation involving the E-911 center because there isn't a representative from the city on the E-911 board.
It is truly disturbing that two of our highest elected officials cannot sit down and arrive at a rational and satisfactory solution on this matter. Personally, I do not believe the majority of the city and county residents want our tax dollars being used on something that could and should be resolved in a more civil and professional manner.
And if this lawsuit goes forward, it will cost the taxpayers.
In my opinion, Mayor McMillan is not acting in the best interests of the voters with this action. And if my information is correct, Mayor Durrett should have afforded the City of clarksville the courtesy of having a city representative on the E-911 board since the city does pay into the funding of the E-911 center.
And as if this isn't bad enough, when Mayor McMillan reformed the committee structure, she claimed she wanted diversity. Yet she failed to place a woman into a chair position of at least one of the committees. This latest action reflects there was a personal conflict with one or more of the council members.
While I fully understand there will always be differences of opinions in politics, these differences should always be resolved in a rational and professional manner, and always in the best interests of the voters.
We did not elect people to positions of leadership only to see lawsuits filed and have our tax dollars used in such irresponsible ways. Is it past time to have a consolidated government? Do we truly need two governing bodies in Montgomery County?
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16
četvrtak
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2016
Accelerating Progress in Tobacco Control: The Example of Tobacco Litigation in India and South Africa
AUGUST 27, 2015
The years have seen a rise in the burden of disease and death associated with tobacco. According to the World Health Organization (WHO), tobacco use kills nearly 6 million people a year.1More than 5 million of these deaths are a result of direct tobacco use, and about 600,000 are due to non-smokers’ exposure to secondhand smoke.2 While tobacco use is of concern in countries around the world, the greatest burden on health due to tobacco has been felt in developing countries.3
States have an obligation under international human rights law to promote, protect, and fulfill the right to the highest attainable standard of health.4 The Framework Convention on Tobacco Control (FCTC) further reaffirms the right of all people to the highest attainable standard of health and sets standards for States to curtail the burden of tobacco. Moreover, the right to health is now well recognized in many State constitutions. Various constitutional provisions, such as those obliging courts to consider international law in their judgments and those establishing the need for the independence of the judiciary and standing, provide a basis for holding States accountable for their obligations. According to the Office of the UN High Commission for Human Rights, nearly 115 constitutions around the world speak to the right to health.5 In the Americas alone, 18 of 35 countries in the region now recognize a constitutional right to health.6
In efforts to help protect health, countries throughout the world have taken significant steps to regulate tobacco use through the implementation of tax initiatives, education and awareness strategies, packaging and labeling requirements, and smoke-free laws. Yet the tobacco industry has struck back, often through litigation, claiming that regulation of tobacco violates its right to freedom of expression, enterprise, and property. The regulation of tobacco brings into question the need to balance fundamental rights. Applying the principle of proportionality and relying upon constitutional guarantees of the rights to health and life, courts around the world have played a vital role in upholding smoke-free legislation and bans on advertising in efforts to protect the right to health examples of litigation.
Nonetheless, the adjudication of health and other socio-economic rights raises questions of judicial legitimacy and poses democracy-based concerns.7 Scholars now question whether the enforcement of social rights should lie primarily with the legislature or the judiciary. Judicial engagement with such rights is further questioned on its ability to truly effectuate change on the ground. It is within this context that the role of courts in holding states accountable for their human rights obligations, and expanding the content of the right to health to include tobacco control, becomes increasingly important. Courts in some countries, including South Africa and India, have been able to successfully adjudicate economic and social rights.
Taking the example of tobacco litigation in India and South Africa, this essay shows the different ways in which constitutional provisions providing for human rights and establishing broad powers for the judiciary have enabled courts to play a vital role in upholding the right to health. It first considers the constitutional protection of health in those countries and then analyzes the British American Tobacco South Africa (PTY) Ltd v Minister of Health (BATs) case and the Murli S. Deora v. Union of India and Ors (Murli Deora) case in India to show how the respective courts came to uphold the right to health.8 The BATs case is interesting in that it highlights the way constitutional provisions requiring courts to turn to international law in their decisions can be vital in upholding the right to health. On the other hand, the Murli Deora decision shows the extent to which judicial engagement with health can result in policy change on the ground. The paper concludes with lessons that can be learned from the examples of tobacco litigation cases in both countries.
The Constitution and the right to health in South Africa
The 1996 South African Constitution has been hailed as a landmark document given the way it aims to protect the right to health and other socioeconomic rights on an equal basis with civil and political rights.9 The Bill of Rights includes traditional civil and political rights and a comprehensive set of economic, social, and cultural rights. All rights are enforceable and considered equal, and the judiciary, under Section 172, has wide discretion to grant remedies as appropriate.10 Moreover, Section 39(1)(b) obliges the judiciary to consider international law when interpreting the bill of rights.
Section 27(1) specifically provides for the right to health care services, including reproductive health, and Section 27(2) obliges the State “to take reasonable legislative and other measures, within its available resources…to achieve the progressive realization of, among others, health care rights.” Moreover, no one “may be refused emergency medical treatment” as pursuant to Section 27(3). Basic health care services for children are provided by Section 28 (1)(c), and 35(2)(e) provides for the “adequate medical treatment” of detainees and prisoners at State expense.
Tobacco control and courts in South Africa
Since its establishment, the Constitutional Court has shown a “formal commitment” to socioeconomic rights given the development of its human rights jurisprudence.11 While a strong constitutional frame calling for equality between the sets of rights has allowed for the judiciary to boldly interpret and uphold the Constitution, in a number of decisions, the obligation to consider international law has been especially pivotal in ensuring health outcomes. In the context of tobacco, the case of BATs v. Minister of Health is particularly noteworthy.
Tobacco use has long posed significant concern in South Africa. During the 1970s and 1980s, tobacco control was not on the public agenda, and for decades the tobacco industry used its relations with the government to prevent any imposition of policy that might restrain the growth of the industry.12 In fact, on tobacco issues, the government would regularly consult the tobacco industry before presenting any tax increases that could affect their business.13 With the change in government in 1994, the Africa National Congress (ANC) announced that tobacco control would be placed high on the agenda. In 2005, South Africa ratified the FCTC, and through the implementation of the Tobacco Products Control Act 83 of 1993, regulated various aspects of tobacco control including, but not limited to, banning public smoking, imposing packaging and labeling requirements, and restricting tobacco advertisements, promotion, and sponsorship.14 Considering the extent to which advertising and promotion of tobacco products can be particularly harmful in encouraging children and young people to use tobacco products, the Tobacco Products Amendment Act 63 of 2008 was implemented to further restrict packaging and advertising.15 Alleging the unconstitutionality of both the Tobacco Products Control Act and the Amendment Act of 2008, BATs brought a suit against the Ministry of Health and the National Council Against Smoking.
In the BATs decision, the South African Supreme Court of Appeal applied the principle of proportionality to determine whether a limitation on BATs’ right to commercial speech as imposed by the Tobacco Products Amendment Act 63 of 2008 was reasonable and therefore justifiable. BATs claimed that the restriction imposed on advertisement of tobacco products under section 3(1)(a) of the Act limited not only the appellant’s right to engage in commercial expression, but also the freedom of tobacco consumers who were denied the right to receive information concerning tobacco products.16
In considering whether the limitation was justified, the Court balanced the right of smokers to receive information concerning tobacco products against the government’s obligation to take steps to regulate health. The Court found that commercial speech was not an absolute right and that the hazards of smoking far outweigh the interests of smokers as a group. It considered the fact that smokers are not a “monogenous group” and that some smokers wish to quit, while others may not want to return to the habit.17 In this way, it found that the ban on advertisement met the health needs of all people. Most interestingly, however, the Court affirmed its decision by relying on section 39(1)(b) of the Constitution, which requires judges to have regard for international law when interpreting the Constitution. Accordingly, the Court turned to the fact that South Africa was a party to the FCTC and that it was obliged to give weight to the treaty.18 It thus held that FCTC Article 13 requires parties to ban all tobacco advertising, promotion, and sponsorship, and that the restriction was consistent with the country’s obligation to comply with the FCTC.19
The BATs decision is interesting as it highlights the extent to which the Supreme Court of Appeal was willing to go to uphold government action regulating health. It suggests that a constitutional frame, which provides for socioeconomic rights on an equal basis with civil and political rights, may at times allow for socioeconomic rights to trump other individual rights. The decision shows that while it is necessary to protect all rights in a democratic society, the interest in upholding certain socioeconomic rights may at times be more important for the function of society—especially when public health is at stake. Most importantly, it shows the extent to which Constitutional provisions requiring courts to turn to international law may be necessary in protecting health, and grounding the ability of courts to affirm health obligations of States.
The Constitution and tobacco control litigation in India
Unlike the direct justiciability of the right to health in South Africa, the right to health and other socioeconomic rights are enshrined as Directive Principles in Part IV of the Indian Constitution. Such rights are intended to guide State policy and are not directly enforceable by courts. Nevertheless, the Directive Principles are “fundamental in the governance of the Country,” and the State is obliged to apply these principles when making laws.20 Moreover, the State has a duty, pursuant to Article 47, to improve public health and the right to health of workers (39)(e) and (f) of children.21
An absence of a constitutionally recognized justiciable right to health, however, has not been detrimental to the protection of fundamental rights. Pursuant to Articles 32 and 226 of the Constitution, the Supreme Court and High Courts have wide discretion to grant appropriate remedies for violations of rights under the Constitution.22 The Constitution further follows separation of powers, and the country envisages a strong and independent judiciary, which has allowed courts to “stand as a bastion of rights and justice”; courts can test not only the validity of laws but also of constitutional amendments.23 The Supreme Court has asserted its powers to hold that fundamental rights (civil and political rights) are not superior to directive principles, but that the two are complementary and that “harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.”24 The right to health and other socioeconomic rights, as a result, have been read into the right to life (Article 21) and by drawing upon the connection between rights, courts have held the State responsible for its obligations.
In a nation stymied by vast socioeconomic disparities, unequal access to justice, and unmet basic social needs, the Supreme Court devised Public Interest Litigation (PIL) as a means to facilitate the realization of fundamental rights for those most in need. PIL serves as a vehicle to initiate socio-economic change as it allows litigants to challenge legislation and bring claims on behalf of vulnerable communities, while setting aside procedural requirements.25 Accordingly, those who would otherwise be unable to afford legal counsel or access courts are able to bring claims. And judges have used their broad constitutional powers to enforce wide reaching remedies to meet the needs of many.
In the context of health, the judiciary has not only played a critical role in providing indicators for the right to health, but has also brought about policy change within the State. With respect to tobacco control, Murli S. Deora v. Union of India and Ors (Murli Deora) is particularly noteworthy as it shows the extent to which violations of the right to health, vis ŕ vis the right to life, occur when the State does not regulate tobacco.26
In India, tobacco has been directly and indirectly responsible for nearly 800,000 deaths annually, and tobacco related diseases and resulting loss of work productivity costs the country over 2 billion US Dollars annually.27 In the case of Murli Deora, the petitioner, a former member of the Indian Parliament, lodged a complaint on grounds that the State’s omission to effectively regulate tobacco use was a violation of life, health, and the duty of the State to raise the level of nutrition and the standard of living to improve public health.
Through an interim order, the Supreme Court prohibited smoking in public places, saying that it was injurious to the health of passive smokers. The Court further directed the State and local governments to ensure that smoking is prohibited in all public places, including auditoriums, hospital buildings, health institutions, educational institutions, libraries, courts, public offices, and railways.28 Given the decision, local governments proceeded to enact tobacco control regulations. Kerala was the first state to pass tobacco control legislation and thereafter, two more state governments approved tobacco control laws.29 At the national level, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act of 2003 was implemented. The case is reflective of the way litigation can catalyze the development of a legal framework in the absence of regulation. The result was the realization of health rights through creation of smoke-free public places, bans on advertising, limitations on the sale of tobacco products, and prohibition of tobacco industry interference in public policy making.
Conclusion
The approaches taken in India and South Africa show clearly the different ways in which constitutional provisions providing for health and those granting wide power to judges can be vital in accelerating progress in tobacco control. The right to health is directly justiciable in South Africa, and the Court in the BATS decision was able to directly uphold it over the tobacco industry’s right to freedom of speech. Moreover, the Court was able to further affirm its decision given that the Constitution obliges judges to turn to international law. In India, even though health is not directly justiciable as established by the Constitution, courts have played a fundamental role in holding the State accountable for its obligations to regulate tobacco through the right to life. Moreover, the broad constitutional powers granted to judges and the development of PIL has allowed for courts to uphold the right to health and ensure access to justice for those most vulnerable. The examples of India and South Africa suggest that courts can play a significant role in ensuring health outcomes. Constitutional provisions granting wide discretion to judges to up hold rights and those requiring courts to turn to international law in their judgments can be vital to ensure access to justice for many. In this regard, there is a real need for countries around the world to continue to develop and broaden laws on standing so as to ensure access to courts for large groups of people; and where possible that constitutional provisions requiring judges to turn to international law be upheld in order to encourage judges to more boldly enforce the right to health.
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09
četvrtak
lipanj
2016
WHAT IS THE DISCOVERY PROCESS IN CIVIL LITIGATION?
February 2, 2016 by Gregory Brown
When you are a plaintiff or a defendant in a civil case, you will need to go through the discovery process. You should have a civil litigation attorney representing you during this process to ensure you are able to obtain the information you need to make your case. civil litigation attorney discovery
Brown & Charbonneau, LLP has extensive experience providing legal representation to clients in a wide variety of civil cases, including common types of business litigation such as employment disputes, breach of contract claims, and shareholder or partnership disputes.
In every case, effectively obtaining information during the discovery process is going to make a huge difference in how effective you are at presenting your case during trial. Our legal team can help you during the discovery process, so give us a call as soon as you become involved in a lawsuit to get an experienced advocate on your side what is the litigation process.
WHAT IS THE DISCOVERY PROCESS IN CIVIL LITIGATION?
In a civil case, a plaintiff has a burden of proving a claim against a defendant. The claim has to be proved by a preponderance of the evidence, so the plaintiff has to convince a jury that more likely than not, allegations against the defendant are true and facts are as presented. A defendant can avoid liability by raising affirmative defenses- which must be proved- or by making it impossible for a plaintiff to meet the burden of proof.
In many situations, however, the evidence needed to make a case is in the hands of the other party. For example, if you are suing a company for a defective product, the company has the design specs for the product. If you are suing a partner for failing to keep accurate books, the partner may have the financial information in his possession.
You need to obtain the essential information that can help you to prove your case, or help you to disprove the case against you. The discovery process is the process in which information is obtained. During discovery, information is exchanged amongst the parties so that they can each begin to build their case.
California Code of Civil Procedure Section 2017.010 explains that: “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter
involved in the pending action.” Parties in a civil case can also obtain information relevant to the determination of court motions related to the accident, or information that is reasonably calculated to lead to discovering evidence admissible in the civil case.
Parties to litigation can seek the identity and location of people with knowledge of discoverable information, as well as details about the existence and condition of documents, any tangible items, land, property, or electronically stored information.
According to Code Section 2017.020, courts can limit the scope of discovery under certain circumstances, such as when the expense, burden, and intrusiveness is greater than the likelihood the information obtained will lead to admissible evidence. The party who is affected by the burdensome discovery request can submit a motion to the court asking that the information not be considered discoverable.
HOW DOES THE DISCOVERY PROCESS WORK?
During discovery, opposing parties should turn over emails, electronic documents, paper documents, and other information that could be relevant to the claims. Parties can submit motions to the court asking for specific information to be turned over, and this is common in situations where plaintiffs believe they have not been given all relevant documents.
In addition to turning over information, the discovery process can also involve interviewing witnesses and finding out what the witnesses know. Witnesses can be sent written questions, called interrogatories, or can be interviewed on the record in person through depositions.
HOW CAN A CIVIL LITIGATION ATTORNEY HELP WITH DISCOVERY?
Determining what information is discoverable and reviewing documents can be very complicated. If you are involved in a court case as either a plaintiff or as a defendant, you should have a civil litigation attorney to assist with the discovery process. Your lawyer can make relevant motions to the court, can argue against discovery of certain materials, and can organize and oversee the document review process to ensure relevant information is obtained. A civil litigation attorney can also conduct depositions, prepare you for depositions, and prepare interrogatories.
Brown & Charbonneau, LLP has extensive experience with the civil litigation discovery process. Give us a call today at (866)237-8129 or contact us online to speak with an Irvine civil litigation attorney who can assist you as you obtain the evidence you need to make your case.
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