Saturday, January 21, 2012

Small Business Owners And Consumers: Beware Of The "Self Renewing" Contract

Mark Twain once said that "a cat, having sat upon a hot stove lid, will not sit upon a hot stove lid again. But he won't sit upon a cold stove lid, either." A "self renewing" contract is like the proverbial hot stove waiting to burn you when you sign up for any service contract, whether you're a consumer or a small business owner.

Definition: a contract provision that AUTOMATICALLY renews for another term unless you give notice (usually written) weeks or even months in advance. It's one of the most sneaky and one sided provisions you'll see in a standard contract, usually buried in the middle of the fine print.

Here's an example of a "pants on fire" self-renewing contract. Say you own a small restaurant or body shop. You sign a uniform rental contract with a large rental company for a two year term. Unbeknownst to you, the contract has a renewal clause for a second term of 48 months, if you do not give written notice 6 months prior to end of first term (or 18 months)! By not knowing about this little dirty bomb in your contract, or even if you're aware of it but forget to calendar it and send a timely notice of cancellation, you might be without recourse. Result: you just unwittingly "signed up" for another two year term. At a minumum, you'll have to "lawyer up" to see if the contract is enforceable (we welcome the work, of course, but the whole point of this post is to teach you how to avoid us if you can!).

Imagine having to pay for a service you no longer want for 2 more years because of this nonsense. And it is nonsense for businesses and service providers to sneak these provisions into a contract and hope you are ignorant or asleep. Unfortunately, they are becoming more prevalent, even with standard consumer or residential contracts like a home security service, for example. I would seriously consider not doing business with any group that includes such a provision in their contract or insists on enforcing it if you object to it before signing.

This kind of crap is becoming the norm. Be on the watch for it. In this current climate of these clauses, and even one sided arbitration clauses buried in form contracts," now more than ever the burden is being shifted to you, the consumer, to presume that the stove lid is hot.

Tuesday, January 17, 2012

Some Good Reasons To NEVER Sign Nursing Home Papers For A Loved One At The Nursing Home

A colleague recently reported a situation where a family member (a son) signed numerous papers at the nursing home in order to begin the process of admitting his mother to the home. The son had a "power of attorney" (POA) to sign the admission papers on his mother's behalf.

Buried in the stack of "standard paperwork" was a "guarantee of payment" for his Mom's nursing home bill. The problem: he signed so many papers that day that he failed to sign it as POA for his mom. Instead, he inadvertantly signed it in his own name. You can guess what happens from here: Mom dies, there is an outstanding nursing home bill, and now the nursing home is threatening to sue him unless he pays the outstanding balance for his Mom's care!!


Let's set aside the legalities of enforcing this "guarantee of payment" for the moment. The real problem here is the dizzying amount of paperwork that nursing homes and assisted living centers require the resident or legal representative to sign before admission. Some of it is standard, but there are many other documents that are one sided, and even strip the resident of important legal rights.

Some of the standard paperwork includes:

Medicare Secondary Payor Questionnaires;

HIPAA Privacy Notices;

Resident Handbook;

Facility Admission Agreement; and

Numerous other financial papers and documents regarding payment.

In a recent Ohio case I litigated, the "Resident's Handbook" was twenty pages long, and the "Facility Admission Agreement" was a whopping fifty pages! Now let's put all this paperwork into context. Mom or Dad are going to the nursing home for a reason: they're either sick or frail and traditional treatment or livng at home is no longer an option. The decision to place a loved one in a home or center can be an emotionally wrenching one. Frequently, time is of the essence because of arbitrary hospital discharge rules or the limited availibility of nursing home beds.

So in the rush to get Mom or Dad in a nursing home (if you're even lucky enough to have the luxury to investigate more than one home), what exactly are you signing? In the case I handled, buried in the "Facility Admission Agreement was a "Limitation Of Liability Agreement." In this "agreement," the resident agreed to give up the right to sue in court if injured, and also agreed to waive the right to a jury trial. Also included was a mandatory arbitration agreement, and here's the real kicker: the resident agreed to a compensation cap of $100,000 for any injuries, and a waiver of any potential punitive damages.

The resident in this case was injured by nurses aides who eventually were charged with criminal patient neglect. We ignored the "agreement" and sued anyway and were able to resolve the case (note, however, that The Ohio Supreme Court has upheld these one sided "agreements" under certain circumstances).

The family member who signed all these papers gave a familiar answer:

"We were asked to sign all these papers and nobody went over them with us.

"We were told we had to sign them right away so Dad could be admitted."

"They had me sign so many papers I have no idea what I signed."

This is frequently the "business model" nursing homes employ to get residents into beds AND chop down the resident's legal rights. It is a model that takes advantage of vulnerable families making painful and often sad decisions.


There is one sure way to protect yourself from all this mess. Ask the facility for some time to take the paperwork home and digest all the information. Twenty four to forty eight hours time to read paperwork, often in excess of a hundred pages, without the pressure of "sign this as soon as possible"--is a reasonable request. After all, if the nursing home/assisted living center is above board, what should they have to hide? If they won't allow this simple request, it may be a sign of things to come: that they value their "business model" above all else--including patient care.

Regarding the "guarantee of payment" the son signed, it is of doubtful validity in Ohio, and I do not think the nursing home will be able to enforce it. But he is now probably looking at hiring an attorney to defend him in a lawsuit if the nursing home sues him for the debt. All the more reason to proceed methodically and take the time to know what your signing...or giving away.

Thursday, January 12, 2012

A Great Trial Argument To Make When They Attack Your "Non-Academic" Expert

Occasionally you run across an expert who has tons of real world experience and technical experience but a thin CV (a cirriculum vitae or "resume") in terms of educational experience. If the other side hires an "academic" expert with a CV the size of a big city phone book, you often face the argument at trial that your expert is deficient and has less credibility because he or she doesn't have the necessary "pedigree" to offer expert opinions.

That's why an obituary buried in the back of our local paper this week caught my eye. Lowell Randall died early this week at the age of 96. Who was Lowell Randall? Only a premier rocket scientist who was part of a team who developed rocket engines that paved the way for spaceflight that eventually sent U.S. astronauts to the moon. He later led a team of scientists that developed The Titan I intercontinental ballistic missile.

Lowell Randall never had any formal education beyond high school. Amazing. It just goes to show that lack of a formal education is not a barrier to expertise or knowledge in any field.

So the next time you're faced with the argument that your expert is inferior to the other side's flashy expert with a thick CV and scads of technical publications and achievements, tell the jury about the story of Lowell Randall. Sometimes dirty hands and a dust covered field jacket are just as valuable in terms of knowledge as someone who pontificates from the comfort and distance of the world of academia.

Friday, January 6, 2012

Why All Patients Should Request Their Medical Records

NPR recently ran an an informative piece on why patients should know what's in their medical records, and some of the blowback from the medical profession on this issue.

As a personal injury attorney one of our standard practices in any auto or other accident claim is to request our clients' complete medical chart from their primary care physician (PCP), since many injured clients frequently seek treatment from their PCP after a collision (a good idea, by the way, unless there is an immediate need to see a specialist like an orthopaedic physician). Moreover, we also need to know whether there was any history of any injuries or treatments to the body parts injured in the crash, so the PCP's records are a good place to start. As such, we read volumes of medical records.

There are two huge reasons why you need to request a complete copy of your PCP's office records.


Have you ever filled out an application for health, life, or disability insurance and attempted to answer endless questions about doctors you've seen and conditions you've had? There's a reason why they're so detailed. Your application is a possible club for them to use to cancel your policy if you get seriously ill and turn in hundreds of thousands of medical bills. It's called "recission," and insurance companies have engaged in a recent trend of hiring recission teams that scour your application for inconsistencies or ommissions, and then claim that you "misrepresented" your application. Result? Policy cancelled. And time to call an attorney...

According to Wendell Potter, former director of corporate communications for CIGNA health insurance and author of the book "Deadly Spin,"a 2006 Congressional investigation found 3 large insurers retroactively nixed nearly 20,000 policies over a 5-year period.

Life and disability insurance companies are not immune from these shady tactics either. You can read about them here.

Here is one way to blunt these tactics and bulletproof yourself against a possible recission/cancellation claim. The next time you have to fill out an application for insurance, get a copy of your doctor's office chart. Not only will you have a handy reference for all of your past medical history you're required to list on the application, consider attaching your records to it! I did this recently, along with a typewritten statement that said "because I cannot remember every medical visit/treatment I've had over the last five years, I am attaching a complete copy of my family doctor's office chart." With that degree of thoroughness, how can any insurance company argue that you "failed to disclose material medical information?" Problem solved.


Every time I read a doctor's office chart I learn something about that doctor. Many amaze me with their thoroughness and attention to detail and a genuine concern for their patients. It shows in the chart. Many times after reviewing my clients' medical chart I will call them and let them know how detailed the chart and how thorough their doctor is.

The opposite is also true as well. Some charts include all sorts of extraneous information and even the doctor's own personal opinions and musings about their patient, or their injury claim. I've also personally seen sloppy and even inaccurate or incorrect information contained in many charts. When clients discover this, they are often hurt or angry that their doctor would include such information in their chart.

Either way, you learn quite a bit about your doctor and the "on paper" state of your medical health when reading your own records. And one final point: if you discover inaccurate information, you have every right to confront your doctor and ask him or her to correct it.

After all, the chances are good that another set of eyes at a behometh insurance company will eventually be reading them. You might as well look at them first. After all, they're your records...