Long Term Care: Emerging Trends

Claims in the long-term care industry have steadily continued to worsen for post-acute providers. According to a 2017 actuarial analysis conducted by AON, entitled “2017 Long-Term Care: General Liability and Professional Liability Actuarial Analysis,” the number of claims per 100 occupied beds rose from .71 in 2007 to .92 in 2012 to 1.03 in 2017. This same analysis found that the average amount to defend, settle, or litigate a claim rose from $165,000 in 2007 to $179,000 in 2012, to $223,000 in 2017. AON writes …

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What Does Daylight Saving Mean to Employers

At 2 a.m. on Sunday, March 11, 2018, people across the United States will set their clocks forward one hour to begin Daylight Saving Time (DST). The change is intended to align the average workday more closely with the hours that the sun is visible, which studies have shown to cut energy consumption, reduce instances of seasonal affective disorder, and even boost regional economies. Often perceived as a holdover from a simpler and more agrarian U.S. culture, the practice actually enamors some contemporary lawmakers: the …

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Electronic Notifications for Affidavits of Merit?

The New Jersey Supreme Court recently declined to dismiss a medical malpractice case for an attorney’s failure to file a timely affidavit of merit (AOM). The court based its decision in large part on the trial court’s failure to schedule a preliminary conference (called a “Ferreira” conference in NJ) to discuss the sufficiency of the AOM. The court further stated that it would order improvements to the courts’ automated case management system to ensure the electronic notification of both the AOM filing obligation and the …

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Bad Back? You’re Fired.

Employers rely upon employees to get the job done. Usually, the “job” requires the employee’s physical presence at work. But injuries and medical conditions throw a wrench in the works. Most employers are at least generally aware of the implications of various federal and state laws governing treatment of employees with medical conditions and injuries. Yet, there is plenty of gray area where employers may be subject to liability. Take for example the recent decision in Severson v. Heartland Woodcraft, Inc. where the Seventh …

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When There’s Smoke, There’s Fire: Allegations of Harassment Can Point to Liability

The recent departures of high-profile executives and the flurry of harassment lawsuits provide plenty of teaching moments for employers. Notably, these very public exits and lawsuits are a prime example of why employers must act decisively when complaints of harassment arise in the workplace. Unfortunately, this situation is all too familiar for some employers. Some employers may be tempted to overlook the conduct of top performers even though it may open the door to liability. However, it is critical that allegations of harassment be taken …

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Does the A-C Privilege Survive a Company’s Death?

When it comes to interesting ethical quandaries, the case of U.S. v. Martin Shkreli is the gift that keeps on giving. As we discussed in a previous post, Martin Shkreli has asserted the “advice-of-counsel” defense in the securities fraud case he is facing in the Eastern District of New York. Since our last post, Shkreli has served a document subpoena on one of the law firms that represented several of his companies, as well as him personally. What complicates this matter, however, is the fact …

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Fee Shifting with Non-Lawyers

As a general matter, the Rules of Professional Conduct prohibit lawyers from sharing fees with non-attorneys.  However, there are certain exceptions to that rule.  Rule 5.4 states that “a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” A recent case out of Pennsylvania describes how a non-lawyer attempted to put this exception into action, albeit unsuccessfully.

The case originated with a complaint filed in …

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Final Word on Employer Wellness Plans

Employee wellness plans are a hot item these days.  Increasingly, wellness plans are seen as a benefit to both employees and employers alike. As many employers jump on the bandwagon of this growing health trend, they should be aware of the other legal implications of creating and implementing these programs within their company. For example, a popular topic ever since the EEOC issued its proposed regulations last year has been how employee wellness programs can comply with existing regulations such as the ADA and Title …

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Pitfalls of Arbitration Clauses in Employee Handbooks

An employee handbook is a necessary and familiar workplace fixture. A recent trend among employers is the inclusion of a mandatory arbitration clause, to avoid a jury trial in the event of employment-related litigation.  Both state and federal courts have recently grappled with the validity of arbitration clauses in the employment litigation realm, and have both concluded that such clauses are not enforceable.  These cases serve as a reminder that an employer must be vigilant should it wish to make such a clause part of …

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Liability for Improper Use of Database

Many professionals have access to online databases that store information not readily available to members of the public.  These databases are a valuable tool for professionals who need additional information about a person for litigation purposes or for other lawful use within the course and scope of their professional practice.  While these databases are only intended to be used for professional use, it is generally possible to access them for non-work-related purposes.  This improper use of otherwise legitimate databases raises potential civil and criminal repercussions …

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