For more Medical PL coverage don’t miss the free webinar on June 5 “HIPAA for Risk Managers: Meet the New HIPAA.”

PLUS members can view this entire educational session by visiting www.plusweb.org/education/multimedia. You must be a member and logged-in to the website to view the multimedia content.

Session panelists not featured in this clip: Laurel Byerly, J.D. (Western Litigation, Inc.), and Stephen Ruocco (Chartis Insurance).

This week’s Fall Through the Cracks Friday, compliments of the Freakonomics blog looks at how voters are like sports fans – changing their opinions on the key issues based on who is in control at the time. From the post:

When pollsters ask Republicans and Democrats whether the president can do anything about high gas prices, the answers reflect the usual partisan divisions in the country. About two-thirds of Republicans say the president can do something about high gas prices, and about two-thirds of Democrats say he can’t.

But six years ago, with a Republican president in the White House, the numbers were reversed: Three-fourths of Democrats said President Bush could do something about high gas prices, while the majority of Republicans said gas prices were clearly outside the president’s control.

The flipped perceptions on gas prices isn’t an aberration, said Dartmouth College political scientist Brendan Nyhan. On a range of issues, partisans seem partial to their political loyalties over the facts. When those loyalties demand changing their views of the facts, he said, partisans seem willing to throw even consistency overboard.

Seen another way, the graphic below shows the percentage of voters, by party, that view government as a threat. Note the relative consistency of the Independents line vs. the fluctuations in the Democrat and Republican lines.

While PLUS blog is politically neutral, we do encourage you to read the entire post on Freakonomics over the coming 3-day weekend.

Have a fantastic Memorial Day, and we’ll see you back here next week for a clip from the recent Medical PL Symposium on Tuesday and from yesterday’s webinar, FDIC Claims Against Directors & Officers of Failed Banks, on Thursday.

For more Medical PL coverage don’t miss the free webinar on June 5 “HIPAA for Risk Managers: Meet the New HIPAA.”

PLUS members can view this entire educational session by visiting www.plusweb.org/education/multimedia. You must be a member and logged-in to the website to view the multimedia content.

Session panelists not featured in this clip: James Fasone, RPLU (Alliant Healthcare Solutions), Paul Murphy (King & Spalding), and David Watson (National Surgical Hospitals).

Thank you to all that attended and supported such a worthy cause.

From the article:

Coverage Issues

The impact on D&O insurance is easy to envision.  More trials with the SEC leads to litigation costs and poses a significant risk of loss for companies.  Settlements with the SEC that admit wrongdoing will likely increase the number of follow-on civil suits by shareholders, but more importantly, such admissions could leave companies and their executives virtually unable to defend themselves in civil litigation, leading to larger settlements.  Companies will turn to their D&O carrier for these losses.  D&O carriers will look for ways to avoid or minimize these losses.

All D&O insurance policies contain conduct-based exclusions, which provide that if it is shown that certain conduct occurred, coverage for losses related to that conduct is excluded.  For example, virtually all policies exclude coverage for fraud or intentionally violating the law.  Thus, if admissions in SEC settlements prove that the company or certain executives committed fraud or intentional violations of the law, coverage could be lost.  Carriers may attempt to use the conduct exclusions to both avoid indemnification for settlements in SEC and civil litigation matters, as well as to cut off defense costs.

In order to avoid loss of coverage, it will be very important to draft policies in a manner that tries to prevent or delay the application of conduct-based exclusions, such as delaying the trigger for conduct exclusions until the underlying matter is un-appealable.  To ensure coverage for individuals under a D&O policy, it will be imperative to ensure that the policy contains language to prevent the admission of one individual from being imputed to other individuals covered under the policy.  Also, it may be important to consider the policy’s language on rescission and any warranties made by the company when the policy is placed to avoid scenarios in which admissions by senior-level officials or the company lead to rescission of the policy altogether, thereby denying coverage to those innocent of wrongdoing.

Finally, companies may need to consider whether higher limits may be necessary to address the possibility of additional defense costs or greater settlements in follow-on civil litigation.

For more D&O related coverage check out the video clips from the 2012 D&O Symposium.

Enjoy some “iPod Magic” with digital magician Marco Tempest.

Also, don’t miss the June 5, 2012 PLUS Webinar “HIPAA for Risk Managers: Meet the New HIPAA.”

From the article:

In the context of long term care organizations, Facebook or MySpace pages of the organization itself or the organization’s staff members can be used to impeach witnesses at trial.  Accordingly, long term care organizations should take a cue from major hospitals and medical providers and create clear guidelines for staff members’ use of social media.
Organizations cannot limit or restrict staff members’ personal use of social media.  Guidelines should stress that all staff members, residents and resident families are personally and legally responsible for the content of the commentary they post and can be held liable for unlawful activities, including defamatory, libelous, obscene or discriminatory statements or posting material that violates intellectual property laws or improperly discloses confidential information.  Staff members should be reminded that residents, residents’ families, competitors and colleagues may have access to the online content they post.  As such, information originally intended just for a small group can be forwarded on to a much wider audience.  Such warnings would have been useful at the Mount Royal Towers, an Alabama nursing home where a staff member performed a lap dance on a 97 year old Alzheimer’s patient.  The incident was recorded and posted on Youtube without the knowledge or consent of the resident or his family.  Members of the resident’s family are now suing the facility, alleging invasion of privacy, negligence, wantonness, and negligent hiring of personnel. [12]

Clearly the above incident represents egregious conduct evincing poor judgment on all levels.  It is, hopefully, an isolated incident, and as such, guidelines should specify that staff members should not make unauthorized disclosures regarding their employer or residents on personal or public social media sites.  These disclosures include information regarding residents, residents’ personal information (including medical conditions or treatment), residents’ families, and other personal information about other individuals without their consent.  Staff members should not post photos, videos or other media on any social media site without the consent of all those exhibits in the media.  Moreover, staff members should not tag, identify, or comment on anyone in any social media without the individual’s consent.

Staff members should also be strongly discouraged from “friending” residents or resident family members.  Facebook friends gain access to one another’s private and social lives, including access to the other’s interests, personal photographs, political/religious views and relationship status.  “Friending” residents and their families gives access to personal information about the staff member, which would otherwise not be shared with these individuals.  Accordingly, staff members should be encouraged to keep their social media sites for personal use and to not communicate with residents and resident families via social media.

Staff members should be instructed that when posting on external social media sites or other public forums, they must make clear that the views expressed are their own personal views, and not that of the medical facility.  An example of such a disclosure is “I am an employee of [enter organization name].  Statements or opinions expressed on this site are my own and do not necessarily represent those of [enter organization name]“.

Moreover, staff members should not post on company public pages private information about residents.  Social media sites should be closely monitored by the long term organization and inappropriate postings or information should be promptly deleted.  This is important to ensure the best face of the organization is presented for public viewing as many organization web and social media pages are open to the public and can be easily accessed by opposing parties during litigation. Damaging posts on social media sites can potentially undermine the ability to successfully defend these matters.

PLUS members can read the entire article atwww.plusweb.org.You must log in to the website to view this content.

This week we turn to our friends at Freakonomics blog for an interesting look at a new requirement in New York state that mandates a minimum of 50 hours of donated legal service time prior to becoming a licensed attorney in the state.

Certainly the intent behind this new requirement is good, though it does raise interesting issues around a flood of inexperienced attorneys providing potentially questionable legal advice. From the article:

The approximately 10,000 lawyers who apply to the New York State Bar each year will have to demonstrate that they have performed 50 hours of pro bono work to be admitted, Chief Judge Jonathan Lippman said. He said the move was intended to provide about a half-million hours of badly needed legal services to those with urgent problems, like foreclosure and domestic violence.

 

The bloggers at Freakonomics raise a few other interesting questions around potential expansion to other licensed professionals – check it out here.

Enjoy the weekend! It is (finally) sunny in Minneapolis so it should be a nice weekend here.

PLUS members can view this entire educational session by visiting www.plusweb.org/education/multimedia. You must be a member and logged-in to the website to view the multimedia content.