Author Archive for Ashley Roncevic

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Can the Police Shoot Your Dog For Barking?

A federal court recently issued a ruling that has got the media in a frenzy.  Can police officers now shoot an animal for moving or barking when entering a home?  While the court ruling did order a police shooting of 2 in-home pets as justified, it doesn’t give the police a sweeping authority to shoot your dog.

Let’s Break It Down

The facts of this case are important to the ruling because the decision is based on the totality of the circumstances.  A warrant was issued out of a Michigan court that gave the Battle Creek Police Department (BCPD) permission to search a local residence, the owner a known gang affiliate, for drugs.

According to court documents, as officers began to execute the search warrant, officers noticed dogs “…barking aggressively, ‘digging and pawing,’ and ‘jumping’ at the window.”  An officer testified that upon entering the home, a 97-pound pit bull lunged at him and it was then that the officer fired his gun at the dog, only injuring it.   The dog retreated to the basement.

Police Shoots Barking DogThe officer further testified that he could not safely clear the resident’s basement because the already injured pit bull was standing at the bottom of the steps.  It was then the officer fired two fatal shots into the already injured dog.

The same officer additionally testified that the second pit bull was standing across the room and barking at the officers, so he fired shots at the second dog.  The dog ran to the corner of the room and caught the eye of a second officer, who then fired shots at the second dog.  An officer then testified that because the dog had several wounds, he “…‘didn’t want to see it suffer’ so he put her out of her misery and fired the last shot”.

Killing a Pet Constitutes a Seizure under 4th Amendment

Many courts have widely agreed that deadly force against a household pet constitutes a seizure.  We know that seizures are unconstitutional under the 4th Amendment if they’re unreasonable.  It’s also been established that killing a pet is reasonable only if the pet poses an imminent danger and force is unavoidable.

Hindsight is 20/20

Ever heard the expression “hindsight is 20/20”?  It’s easy for a person to see things that seem obvious after-the-fact, but it’s the circumstances before-the-fact that matter most when answering these kinds of questions.  Courts focus on the perspective of the officer on the scene and not the perspective of the perfect vision that hindsight offers.  It all comes down to whether or not the pet poses an imminent threat from the perspective of the officer.

This is important because anyone reading those facts above after-the-fact could easily argue the officers acted unreasonably against the two dogs.  Shooting the first dog when the dog lunged at the officer is one thing, but shooting an injured animal that’s simply barking is another story.  But, again, the courts don’t get the pleasure of making those judgments based on hindsight and they must consider the perspective of the officers in the moment of the situation.

Court Says Fear of Imminent Threat from Dogs Was Reasonable

There’s no argument that executing a search warrant lends to stressed circumstances for police officers and those officers are often forced to make split-second judgements based on unknowns.  The court found that due to the already high nature of the threat against the officers executing the warrant in a home of known gang affiliates, the officers were understandably on high alert.

The shooting of the first dog, according to the court, was warranted because 1) it was aggressively barking, 2) it lunged at the officer, 3) even after the dog had already been shot by the officer, the dog continued to aggressively block the officers entrance into the basement, and 4) the officers could not safely clear the basement while the dog was preventing the officer to do so.  The court found the shooting of the second dog reasonable because both officers testified they could not safely clear the basement with the presence of the barking dog.

Conceptually, I agree with the standard used by the court—if an animal poses an imminent threat, then force is reasonable.  However, I’m not convinced, at least that the second dog, posed an imminent threat to the officers in this situation.  Although the court didn’t actually create a bright line rule giving police the power to shoot any moving or barking animal inside a house, actual application of this ruling could have potential repercussions for abuse.

Can Too Much Caffeine Lead to a DUI?

Has it come to this?  At least 68 million Americans drink coffee every single day.  If those staggering numbers are any indication of the number of people that are consuming caffeine on a daily basis, consider the fact that that number is for coffee consumption and doesn’t even include soda.  Does that mean all of us consuming caffeine need to worry about getting a DUI?

A California man, Joseph Schwab, was pulled over on suspicion of driving under the influence back in 2015.  Schwab was given a breathalyzer test, which he passed with flying colors.  Although the breathalyzer showed 0.00% blood alcohol level, Schwab had his blood taken for a toxicology test after being taken to county jail.  Results, again, came back 100% in favor of Schwab.

Charges weren’t initially filed against Schwab, but ten months later misdemeanor driving under the influence of a drug charges were filed.  A second set of test results sent from an outside testing facility showed caffeine was the sole substance in Schwab’s blood.

Chief Deputy District Attorney, Sharon Henry, for Solano County stated, “the charge of driving under the influence is not based upon the presence of caffeine in his system.”  Schwab’s attorney, Stacey Barrett, however, stated she was not provided with any evidence supporting a theory of any other substance within Schwab’s system.  Barrett subsequently filed a motion to dismiss the charges against Schwabb.

Can Caffeine Consumption Really Get You a DUI?

Maybe, but it’s probably not really very likely.  Under California law, a drug is any substance, illegal or legal, that isn’t alcohol that might “impair, to an appreciable degree” a driver’s capabilities behind the wheel to drive like a sober person.  Were you able to drive with caution?  Was your driving that of a sober person of ordinary prudence under similar circumstances?

Caffeine works by stimulating the central nervous system, the heart, muscles, and the centers that control blood pressure.  Theoretically, if enough caffeine is consumed, then it’s possible it could have effects that could impair a driver’s capabilities to drive safely.  Typically, though, side effects of consuming caffeine have much smaller effects such as stomach aches and insomnia.

How, Then, Can Schwab Be Charged?

According to the District Attorney’s office, the State decided to go ahead & charge Schwab because drug tests don’t catch every drug.  The State was convinced that because Schwab was driving so erratically, he must have been on something.  Remember, though, that since this was a criminal charge brought against Schwab, the State has to prove beyond a reasonable doubt that he was driving under the influence of drugs.

Even though caffeine is a substance that can affect the nervous system, brain, or muscles, all things that define a drug under the applicable law, a prosecutor would be hard-pressed to prove to a jury beyond a reasonable doubt that the consumption of caffeine, alone, inhibited Schwab’s abilities to drive enough to pose any danger.  Observations of an arresting officer can be relied upon heavily, but it’s not necessarily enough.

Under California law, driving erratically isn’t necessarily conclusive enough to prove driving under the influence—it’s only a factor a jury can take into consideration.  An arresting officer can testify to 1) the unsafe manner in which you drove, 2) your physical appearance, and 3) your performance on a field sobriety test.  According to the officer, Schwab cut her off and was driving erratically.  In Schwab’s case, this would have been the only evidence, at least that’s been made public, that the State had to go on since blood tests came back negative.

These are the likely reasons the District Attorney’s office conceded and just filed their own motion to dismiss the charges against Schwab, despite the fact they claimed forensic lab experts stated it was “highly likely the defendant was under the influence of a drug.”

 

Trump Presidency Promise: Repeal Obamacare in 2017

One of the main platforms President-elect Donald Trump ran on during the election was healthcare reform. Repeal Obamacare. “Great health care at lower costs.” That’s what we’ve heard over and over again. Since the election, Trump seems to be singing a different tune now, saying there are parts of Obamacare he plans to keep.

Which parts though? Senate Majority leader Mitch McConnell asserts, “The Obamacare repeal resolution will be the first item up in the new year.” With a lot of determination coming from the GOP, we haven’t really seen any indication of what a new plan might look like and how it will affect healthcare for millions of Americans. 

How Do They Plan to Do It?

Repeal and delay through budget reconciliation. The GOP has been very public about their plans to repeal and delay the Affordable Care Act’s funding using this process. How does it work, though?

Budget reconciliation allows for expedited consideration of certain tax, spending, and debt limit legislation. The Senate could introduce new legislation regarding these tax, spending, and debt limits that relate to Obamacare without being subject to filibuster by the Democrats and, because the GOP controls the Senate, the new legislation would pass by a majority vote.

obamacare repeal 2017In other words, if it impacts federal spending, the GOP can pick and choose which parts of Obamacare they don’t like and thus block the spending. This is their way of repealing the parts they hate without throwing the whole thing out altogether.

It’s not necessarily that simple, though. Budget reconciliation requires forming a budget resolution, which is typically a lengthy back-and-forth process that can take months to come up with a final product. Nonetheless, if the budget reconciliation is accomplished, money would likely continue to flow through for Obamacare for at least a few years, giving the GOP time to fill in the holes and craft a new system.

Will It Work?

A promise to reduce healthcare costs sounds great, but how is this going to be accomplished? At the end of the day, it doesn’t really matter how Congress plans to repeal the Affordable Care Act. What matters is how it’s going to impact the nation. Cost is important, but so is quality.

According to a report from the Urban Institute, under this reconciliation process, the change could eliminate Medicaid expansion, eliminate the federal financial assistance for Marketplace coverage, and eliminate the individual and employer mandates. The Urban Institute predicts this process will cause 4 million people to lose insurance in the first year alone and, by 2019, the already high number of 28.9 million Americans without insurance will increase to 58.7 million. This is a 103% increase. This is just the tip of the iceberg and will only get worse if Congress doesn’t come up with a replacement quickly.

Since it doesn’t appear the GOP has any agreed upon alternative plans for how they’re going to better Obamacare, the major concern floating around with this repeal and delay plan is that it will create a frenzy within the insurance market during the transition period.

Although a direct link is widely debated, some believe those with insurance are healthier and less likely to die prematurely. Does this mean less healthcare creates an unhealthier America? Will this create a spike in insurance rates? It’s definitely a likely outcome that could mean Americans won’t be looking at lower health care costs anytime soon. 

Obama Signs New Law That May Make It Harder to Repeal

President Obama recently signed the 21st Century Cures Act into law, which many are regarding as a last ditch effort to sway the opinions of some proponents in the hopes of keeping Obamacare in place.

Certainly not the primary target of the Act, as the majority of the bill is focused on medical research funding, improvements to mental health and substance abuse care, streamlined regulations for drugs and medical devices, and some changes to Medicare and Medicaid payments, but there’s a small portion of the bill that focuses on a positive change for small businesses.

The relevant portion of the Act essentially allows small businesses to use Health Reimbursement Arrangements (HRA) to compensate employees who buy their own insurance. Companies with fewer than 50 employees can reimburse those employees for purchasing individual health insurance as if the company were directly paying the premiums on a group health policy. Employees won’t have to pay taxes on the company’s premium contribution and the company won’t owe any payroll taxes on the reimbursements either.

Can You Get Sued for Your Critical Yelp Review?

In a world where fast-food chains get blamed for customers biting off too big of pieces of chicken and coffee chains get sued for for under filling their lattes, it shouldn’t come as a surprise when someone gets sued for leaving a bad yelp review.  Yet, somehow… it still does.

Lan Cai, a 20-year-old nursing student, was seriously injured in a car accident.  Driving home from her waitressing shift late one night, she was struck by a drunk driver, ultimately leaving her with two broken bones in her lower back.  With the high costs of medical bills, Cai understandably critical yelp reviewsought out legal help to prove her damages.

Cai hired the Texas law firm of Tuan A. Khuu, who she claims was extremely unprofessional.  After writing about her experience with the firm on her Facebook page and via a Yelp review, Cai received cease and desist letter from Keith Nguyen, a lawyer at the Khuu firm, threatening suit if she didn’t remove her posts.  Cai refused and Nguyen proceeded with his lawsuit demanding close to $200,000.

What Did the Firm Sue for?

Defamation, libel per se, defamation per se, and injunctive relief.  The judge wasn’t buying it, though, and dismissed the case, ordering the Khuu firm to pay $26,831.55 in attorney’s fees.  The firm’s actions backfired and they have, unsurprisingly, received even more negative attention than they had to begin with.

This isn’t the first time a case like this has been brought before a court.  Earlier this year, a pet sitting business sued a Texas couple for up to 1 million for leaving a one-star review on Yelp.  What did the couple complain about on the review that was so harrowing to the pet sitting company?  Their fish had been overfed.

What’s to Stop Companies from Suing?

Well, it depends on where you live because there aren’t any federal protections, unless you count the First Amendment (which you should).  Let’s rephrase that to there aren’t any federal protections that address these specific issues surrounding negative reviews of online.

These suits aren’t uncommon and they fall under a classic SLAPP type lawsuit.  SLAPP lawsuits (Strategic Lawsuit Against Public Participation) , which are illegal in many jurisdictions, are intended to censor or silence critics by burdening them with the cost of legal defense in the hopes they comply with whatever it is the plaintiff wants them to do (or not do).

Sometimes you’ll also see companies trying to sue their customers/clients for leaving negative reviews because the client has signed some sort of non-disparagement clause.  What’s that, you ask?  Basically, it’s a clause in a contract (usually in the fine print) that prohibits the signor from taking any action that might negatively impact the business.

California has a law that’s been notoriously nicknamed the “Yelp Bill” because it renders these types of clauses null and void.  Others, like Texas, have laws that allow SLAPP lawsuits to be thrown out at early stages of litigation.  Remember the Texas couple with the fish?  They signed a non-disparagement clause.  Luckily for the couple, the case was dismissed, but I doubt it will be the last of its kind unless some kind of federal legislation is passed.

Negative Reviews May Prevail Depending On California Supreme Court Decision

The California Supreme Court is set to hear an appeal brought by Yelp involving a similar case similar to Cai’s.  In that case, a lower court ordered Yelp to remove a negative review off their website because a former client of a law firm left statements on the popular website that were found to be legally defamatory.

Yelp argues a favorable outcome for the law firm would open up the flood gates for businesses to force the company to remove critical reviews and, thus, infringing on free speech rights.  The law firm, on the other hand, argues their case is unique in that they’re only asking the company to remove the review that contained defamatory statements.

In theory, yes, defamatory statements made on the review site pose a different set of problems, but even still, forcing Yelp to remove the review will open up a can of worms.

If not, Hopefully Congress to the Rescue

How many of you have ever left a Yelp review?  How many of you have ever relied on one of those Yelp reviews when choosing a company to give business to?  Even something as simple as deciding what restaurant to go for dinner?

With big companies like Twitter, Facebook, Microsoft, and Yelp advocating for better consumer protection, Congress has started to listen.  Currently, Congress is trying to pass legislation through the House that would ensure customers are protected from any legal repercussions when leaving negative reviews online.

Last year, a similar bill was passed through the Senate and, although the two bills need to be merged before they can be officially signed into law by the president, both bills accomplish the same thing.  Business contracts for goods or services will be restricted from using non-disparagement clauses, or anything like it, that would prohibit negative reviews.



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