Medical/Legal Question

Monday evening one of my friends was helping his neighbor put a new railing on his front porch. During the project his index finger lost an argument with a table saw :eek: and he had to go to the ER. Many sutures and bandages later he goes home.

To his surprise, first thing Tuesday morning he receives a call from a local attorney asking if he wanted to sue his neighbor. He declined. At the time, the only people who knew about the accident were he, his wife, and the ER personnel. Neither he nor the missus had called an attorney so the info must have come from someone in the ER.

The same thing happened to a good friend several years ago. He slipped and fell in front of his father’s house and injured his elbow. I took him over to a different ER. Next morning he gets a call offering to sue his father (Well, not actually, Mr. M____. We’d be suing your father’s insurance company). Again, the only people aware of the accident at the time were he, me, and his father and none of us told anyone.

It appears to me that hospital personnel are informing lawyers of potential clients without the patient’s permission or knowledge. Is this legal? If it is, does the legal community consider it ethical?

Moved from GQ to Great Debates.

Truly an interesting question. I eagerly await the professionals on this.

samclem GQ moderator

I don’t understand why this was moved - it’s a factual question with a factual answer.

From the legal side: No, it’s not ethical. In my state (Illinois), a lawyer arranging to have someone in the ER give him leads (or alternatively, recommend the lawyer to the client) would violate at least one provision of the Code of Professional Responsibility.

Depending on the precise arrangement with the ER runner, the lawyer might also run afoul of CPR 7.2(b):

or CPR 5.4(a):

From the ER person’s side of things: It’s probably a HIPAA (a federal statute which restricts the disclosure of patient informatuion to third parties) violation.

In Ontario, it would be a major no-no for the hospital and its records person to give over the patient’s information, and by extension for the lawyer to receive and act upon it. We have legislation that assures patient records confidentiality, we also have torts such as invasion of privacy, and we have professional governing bodies such as the OMA and the LSUC that sanction doctors and lawyers.

Coincidentially, this afternoon I finished drafting a claim against a couple of people for getting their hands on medical records without the patient’s permission and also for then using those medical records without the patient’s permission. My clients will win, which will bankrupt the folks being sued.

In California, the medical records of a patient are not to be submitted to anyone withour the permission of the patient.

I have heard of situations where after an atty gets a personal injury case, he may recommend a Dr. who gives him an under the table kickback for the referral…then the Dr. treats the patient with physical therapy…and when settlement occurs, the pt. often gets 75% of the settlement fees and the Dr. keeps his medical fees for the patient’s treatment.

I would like to think that this does not happen often…But I can see an ER tech…not necessarily a Dr. or nurse…calling up a lawyer who might send the pt. a letter.

To follow thru with the corrupt lawyer including a law suit…taking his deposition…and so forth is so expensive to the patient that he rarely fights back.

The insurance companies would rather pay 6000 or 8000 dollars to settle the case than fighting the Dr. and/or lawyer to trial …paying for expert witnesses along the way and their own atty’s fees.

How do I know so much about this? Ask any Dr most of whom practice medicine with integrity…they know that this goes on as well.

I am not medically trained (come on! my degree’s in the classics), but I work for a business whose clients include doctors and other medical professionals. We routinely sign HIPAA “business associate” agreements because of the medical information that goes through our hands.

It doesn’t matter if the doctor treating them, the nurse, or the janitor got the name of a patient and gave it to a lawyer, the hospital would STILL be liable under HIPAA.

Considering the sheer amount of work it takes to be HIPAA compliant (this can include anything down to keeping a fax machine which may receive faxes with patient information out of view and reach of anyone but office staff) I would be surprised if someone NOT in the employ of the hospital were getting this information, unless there’s a much bigger conspiracy than either of us can imagine.

Corrvin

New York lawyers charge with bribing hospital workers

http://www.manhattanda.org/whatsnew/press/2003-02-26.htm

Debate?

Is there a precedent for a thread being sent back from whence it came?

My sister-in-law was looking over her bank paperwork as she exited the bank. She fell on the uneven sidewalk, breaking her ankle. While she laid there awaiting the ambulance, an attorney knelt by her and tried to convince her to sue the bank. She tried to explain to him that she was at fault. He was very insistent, explaining that it would cost her nothing. She is a good person and held on to her right to not sue.

What **Random **said. I have worked with some sleazy lawyers in my day, and the worst of them see the rules **Random **quoted as mere technicalities. They do all they can to circumvent them.

For instance, one lawyer that I worked for briefly had his father-in-law in the office contacting accident victims of a bus crash in a jurisdiction in which this lawyer was not even licensed.

Here is the Michigan Rule on the subject of soliciting potential clients:

How did he escape the rule (at least in his own mind)? He was retained by distant relatives of some of the crash victims. Therefore, he was contacting these people as “potential witnesses,” and not as potential clients. Unfortunately:

  1. None of the people he represented were legally entitled to sue.
  2. Father-in-law did not ask the witnesses questions about what they saw. Instead he asked them about whether they had a lawyer and whether they wanted the lawyer to represent them. Again, even though he wasn’t licensed in the jurisdiction.
  3. It would have been easy to convince a fact finder that the pretextual reason for calling (to interview witnesses) still left him with a significant profit motive, which is all the rule requires.

Note that under the rule, even if one knows that the victim might benefit from the lawyer’s services, the proper method of contact is by letter–not phone call.

Legal - Absolutely not. Public Law 104-191, widely known as HIPAA, protects your privacy by prohibiting any and all release of medical information without the patient’s specific permission. Health Insurance Portability and Accountability Act of 1996 | ASPE

Huge fines and jail time possible for convictions. Anyone can file a complaint. http://www.hhs.gov/ocr/privacyhowtofile.htm

Legality aside, as a physician, the ethical boundaries at stake here are what I find to be most worthy of debate. Ethical foundations, or the rules and principles which govern right conduct, are subject to the moral beliefs of a society at any given time. Our US society, or at least an appreciable segment of it, seems to consider payment for damages a moral imperative (that is, always right). In my view, the unquestioned morality of this leads to a pseudo-ethical framework adopted by many personal injury lawyers - if payment for damages is always the right thing to pursue, a code of conduct that embraces the relentless pursuit of that is therefore ethical. The curious thing, though, is that our society also considers privacy to be a moral imperative as well. In a proper ethical framework, the primacy of one governing ethic (preserving privacy) easily trumps a secondary one (payment for damages) when the two are competing.

Indeed, the two values hardly conflict in this case. Nobody is saying that the injured person can’t get compensation for his injuries. The question is whether he ought to be contacted by someone trying to sell him the service of assisting him in obtaining compensation. Ethical rules like the ones quoted are designed to prevent lawyers from speaking to those who haven’t contacted them first (Shapero says that they can write them).

Suppose, for example, that the lawyer has monitors a scanner and then searches on the addresses, or sits in the emergency room. The lawyer still cannot solicit business from these people, except in writing.

I think most of us would agree in this case that privacy requires that the patient’s medical and non-public personal information not be disclosed to anyone who does not need it. Most would also agree that the patient’s privacy is violated if a lawyer (no matter how well-meaning and no matter where the lawyer got the information) contacts the patient in order to solicit the patient to hire the lawyer.

The patient or a representative can certainly pursue compensation on their own initiative, or decide not to.

Agree with all prior posters: not permitted conduct, for the lawyer or the medical staff. Posting myself only to add a suggestion of what your friend can do about it. There are several possibilities. To me, the simplest and best would be to send a letter to the WV state bar disciplinary board (address probably available on the Internet), including a copy of the solicatiation. Send a “cc:” of the letter to the lawyer and the hospital. This might indeed result in disciplinary action against lawyer (at least a warning), but more importantly has a good chance of inspiring hospital to “do something” to prevent a recurrence. No guaranties on either front, but risk-free to your friend and, well, the right thing to do.

she of course has every right to choose not to sue, but choosing not to sue does not make her a “good person”.

your sister-in-laws inattentiveness certainly played a role in her injury, but that in no way absolves the municipality or business or whomever had the responsibility of making sure that the sidewalk was reasonably safe.

would a little old lady who was paying complete attention but still tripped and fell, breaking her ankle on the exact same uneven portion of sidewalk be a “bad person” for suing?

if it’s unsafe, it should be fixed.

Depending on where the bank was located, wouldn’t the sidewalk fall under the city’s control?

I have a hypothetical:

Lawyer A pays (under the table) an person we’ll call Ambulance Chaser to listen to a police scanner in his/her car and follow patients/potential clients to the hospital, and then overhear their situation or alternatively lend a sympathetic ear and pass on a business card. Lets assume Ambulance Chaser comes up with an excuse for waiting in the ER waiting room. Could Ambulance Chaser pass on the lawyers card after having a “friendly chat” with the patient/potential client? What about if Ambulance chaser just listened to the patient describe the incident and give their telephone number to the ER staff? Would Lawyer A still be breaking the law, and what about Ambulance Chaser is doing?

Lawyer A is guilty of ethical violations in all of cases where Ambulance Chaser recommends Lawyer A or hands out Lawyer A’s card, at the very minimum, lawyer A has given something

Obviously, Lawyer A is also guilty of soliciting any state or federal crimes committed by AC in eavesdropping on patients. But a crime is a bit harder to find.

One possible source of criminal liability for AC is HIPAA. But HIPAA only covers “Covered Entity and Specified Individuals.” http://www.ama-assn.org/ama/pub/category/11805.html So the hospital might be in trouble under HIPAA for failing to adequately safeguard patient privacy, but AC’s liability is less clear.

Then there is 28 U.S.C. section 2511, which subjects to criminal liability anyone who:

But this probably doesn’t cover simply listening in on a conversation–it requires the use of a device to listen in. 404 - Page Not Found (listening to telephone conversation not covered by statute).

I’m still looking for a statute prohibitting AC’s conduct.

Is it possible that the insurance companies are in play here? Perhaps your friend’s neighbor called his insurance company to ask if his homeowner’s insurance covered your friend’s bills, and someone from the company passed the info on? Or someone at your friend’s medical insurance company, not really wanting to pay the bill, passed the info on as a way to get out of paying?

Not to say that there aren’t unscrupulous doctors/nurses/etc, but there may be other factors we’re not looking at…

I had a medical school classmate who made extra money during his fourth year working for his brother, a lawyer with a major local personal injury firm. He would go through the trauma ward and occasionally the ER to find good potential cases for him, and pass along addresses and phone numbers.

It was clear that neither my classmate nor his brother was weighed down with a sense of ethics. He claimed that his brother was exploiting some loophole that made it technically legal, but he could still get in trouble with the bar. I doubt it, personally, but this was just before HIPAA went into effect.

Generally speaking, sidewalks are easements, for which the property owner (in this case, the bank) is responsible to keep in good repair.

There may be local laws that change this, or it is possible in some places that the sidewalk is part of the right-of-way and therefore belongs to the city, but the common law approach is as I stated above.

Sua

It really depends a lot on the jurisdiction. E.g.,

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nh&vol=0410\richa128&invol=1 (government not liable for injuries on sidewalk unless sidewalk was insufficient and government had notice of insufficiency).

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=135&invol=492 (city has power and duty to maintain sidewalks, but is not liable for their condition).

http://cobar.org/opinions/opinion.cfm?OpinionID=4890 (noting common law no duty rule in sidewalk injury cases that "property owners owe no duty to pedestrians to keep the sidewalks abutting their property reasonably clear of naturally accumulating snow and ice)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=or&vol=A110037&invol=1 (city was not liable in this case, but owner of abutting property was)

http://www.lawskills.com/case/ga/id/45018/ (discussing exceptions to the rule).