Archive for the 'Uncategorized' Category

Healthcare Providers Face Liability Over Transgender Issues

Healthcare providers are faced with new liability issues as transgender rights continue to expand. Lawsuits involving healthcare providers and transgender patients are popping up all over the country. Besides the normal patient/provider liability issues, these new issues, among others,  stem from discrimination, lack of knowledge surrounding proper treatment, and professional liability issues as medical providers.

In San Diego, a grieving mother is suing Rady’s Children’s Hospital after her son’s suicide, claiming medical personnel discriminated against her transgender son and violated federal and state gender discrimination laws.  After an incident involving transphobic harassment, Kyler Prescott, a 14-year old boy suffering from gender dysphoria, inflicted serious injuries upon himself.  It was at that point Kyler’s mother, Katherine Prescott admitted him to Rady for treatment.

While being treated at Rady, Prescott claims hospital staff repeatedly referred to her son as a girl, despite being aware that he was a transgender boy. Continual requests to refer to Kyler as a boy did nothing and, in her complaint, Prescott says one Rady employee even said to Kyler, “Honey, I would call you ‘he,’ but you’re such a pretty girl.”

The young boy was dealing with a high level of distress and anxiety over his gender dysphoria issues. Prescott alleges this only further traumatized Kyler and caused him to go “into a spiral,” effectively making his state much worse than when he first arrived for treatment.

She can back up her claims, too. If you’re not familiar with the term, gender dysphoria is a strong feeling that your body doesn’t reflect your true gender.  According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, if left untreated, gender dysphoria can lead to debilitating depression, diminishment of self-esteem, serious incidents of self-harm, and suicide.

Despite the recognition of Kyler’s serious mental health issues, including his suicidal ideation, Rady’s psychiatrist determined Kyler should be discharged early from his 72-hour stay due to the discrimination he was receiving. About five-weeks later, after describing his stay at Rady as “horrible,” Kyler committed suicide.

Is This a Case of Sex Discrimination?

The issue seems to stem from the provider’s inability to properly treat a transgender patient suffering from gender dysphoria rather than intended discrimination. It further boils down to the fact that Rady advertised and held themselves out as experts in treating transgender and gender nonconforming children and adolescents through its Gender Management Clinic.

Nonetheless, the issue of an actual intention to discriminate doesn’t matter here. Title IX and Title VII have been interpreted in federal courts to prohibit discrimination of transgender people and the regulations of the Affordable Care Act (ACA) specifically mandate providers covered under the ACA must “treat individuals consistent with their gender identity…” Further, the ACA defines discrimination as including a refusal to use names and pronouns correctly.  It doesn’t get much clearer than that.

So, yes, Prescott has standing against Rady. Even if you take out the fact that the provider misused gender pronouns, if Kyler was in fact released from care early simply to avoid further mistreatment, he plainly was denied equal treatment based on his sexual identity.

It’s Not Just Gender Insensitivity Issues Either

What happens when a transgender patient identifies themselves in one manner, but has yet to take measures to be identified in that manner legally? It’s an issue providers are finding themselves facing.

Patient misidentification isn’t unheard of and, just to name a few concerns, can affect drug administration, blood transfusions, and surgical interventions. Medical malpractice anyone?  When healthcare providers treat patients, there’s a strong emphasis on the responsibility to check and follow protocols when identifying patients and match those patients with the correct care.  These protocols include identifying patients by their legal name and using the same name throughout care.

Take, for example, a hypothetical transgender patient who identifies as a man and goes by the name of Joe, however, legally Joe is still identified as a female named Jill.  Is it discrimination for a healthcare provider to refer to Joe as Jill?

I imagine using legal names is okay so long as providers are using the correct pronouns, but even then that could get confusing for identification purposes. Perhaps the solution is to make notes on patient files that a patient prefers to be called by a certain name, just like back in school when your teacher would ask if you preferred to be called Will over William.  Even then, if providers continue to ignore requests, such as alleged in Kyler’s case, there’s definitely a wider net to cast a discrimination case.  It’s a slippery slope that the healthcare industry is going to have to navigate carefully.

Can a Catholic Hospital Refuse Medical Treatment For Religious Reasons?

What happens when a hospital refuses vital medical treatment due to the hospital’s religious beliefs?

In the United States, Catholic hospitals have come under scrutiny when reports emerged of women denied treatment due to their “ethical and religious directive.” In almost every case, it was a woman who was either pregnant and/or wished to prevent pregnancy.

How can hospitals, especially Catholic hospitals, deny necessary treatment? Regardless of religious affiliation, hospitals are there to treat and serve their community. How can the hospital be allowed to operate if they refuse necessary, life-saving treatment for those in need?

What Does the “Ethical and Religious Directive” Say?

In the United States, Catholic hospitals must follow the “ethical and religious directive” set by the Church. The Directive instructs that hospitals should treat all patients, including (but not limited to): the poor, those without insurance, single parents, the elderly, children, and “the unborn.”

The Directive states that a pregnant woman can undergo treatment or care, even at the risk of the fetus’s life, so long as their illness is “proportionately serious” in comparison to the loss of the fetus. In fact, the Directive uses the term “proportionately serious” when describing the health of a pregnant woman and an unborn fetus.

For these hospitals, the life of the unborn fetus is as important as the life of the pregnant woman in distress. In essence, the fetus is as much a patient as the mother. In fact, the directive also forbids the hospitals from sterilizing women, so they also treat the hypothetical “unborn.”

The doctors at the Catholic hospitals refused to perform an abortion, since the fetus’ heart was beating. Even after the women were bleeding heavily, in excruciating pain, developing an infection, and were told that their is no way for their child to survive.

Can a Hospital Refuse to Give Necessary Treatment?

No, a hospital cannot refuse to give a patient necessary treatment. However, the question is whether the treatment is necessary.

An abortion is not always necessary if the pregnancy would become a miscarriage. However, it is a common medical practice in the United States to perform a medically necessary abortion when a patient begins to show signs of infection and/or severe pain.

Many of the women in the report were experiencing severe pain and showing signs of infection. Instead, the Catholic hospitals turned away each patient and told them to wait in pain, discomfort, and fear until the fetus no longer had a heartbeat. In fact, to fight the pain and infection, they were given some aspirin and sent home.

It is easy to say that these women should have gone to a different hospital or facility; someplace that does not follow the Ethical and Religious Directive. But Catholic hospitals are growing in number, and in some states they account for 40% of available hospital beds. This means that for many of these women, finding a place that is not a Catholic hospital may mean hours of travel to receive treatment.

So Why is This Still Going On?

The state and federal government have not addressed the gap in treatment options that are due to religious directives. The government wants to encourage the creation and running of non-government run hospitals, but they cannot tell these hospitals how to operate.

Currently, hospitals may be required to have emergency services and not turn away impoverished patients. But women’s health and abortion issues are still heavily debated, in the government and around the dinner table. If the government cannot take a stand on abortion, then it would be hard to impose any requirement on hospitals.

But what can we do about women who are falling through the cracks of the system? These women are not seeking an abortion to end a healthy and viable fetus. They are seeking an abortion to help end the agony of a miscarriage after being told that their child will not survive.

Given the current landscape of women’s health, it seems like this issue will not be resolved any time soon. But for the health and safety of 50.8% of the United States population, we can only hope that it will stop being a question of politics and instead a question of public health and well-being.

ITT Tech’s Sudden Shutdown Brings New Legal Woes

ITT Technical Institute became a household name for many people who remember seeing the commercials on daytime tv during soap operas and daytime talk shows. However, ITT Tech is now becoming known for a business move that is as shocking as anything on the television programs that it once advertised. That move was to abruptly close its educational centers without much, if any, warning.

The for-profit educational juggernaut is now finding itself in legal trouble after suddenly shutting the company doors. Three employees have filed lawsuits against ITT Educational Services, Inc., the company in charge of the ITT Tech educational centers, over the fact that the company failed to provide an adequate warning to its employees before closing.

Under the Worker Adjustment and Retraining Notification (WARN) Act, companies with 100 or more employees are required to provide 60 days notice to their employees in the event of a plant closing that results in a mass layoff. A mass layoff is defined as a layoff of 50 or more employees. ITT

When the details of the WARN Act are applied to the facts of the ITT Tech situation, it does appear that ITT Educational Services, Inc. did owe its laid-off employees a warning. The mass closings of the ITT Tech educational facilities occurring all at once can equivocate to a major plant closing despite occurring at different locations instead of a singular location.

Also, the aggregate number of employees working at the various shuttered educational facilities was around 4100 employees, which means that the shutting down of the ITT Tech facilities did lead to a mass layoff if viewed as a singular action.

ITT’s Defense

However, there are two arguments that ITT Educational Services, Inc. may be able to use to successfully defend itself. First, the company could argue that the closures cannot be treated as a singular closure that triggered a mass layoff because the facilities are located all across the country with many facilities employing less than 50 employees.

Closing several smaller offices rather than one large office has a different impact on a community than if a single location employing several people in that community shuts down without warning. The court can choose to look at each facility closure as a single instance instead of choosing to aggregate all of the closures and employee numbers into a single event. If the court does choose to look at the different closures as unique events, then the number of employees lost at each educational facility may not be enough for the employment loss to count as a mass layoff.

In the event that the court does choose to look at the closures as a single event, ITT Educational Services, Inc. may still be free to argue that it should be exempt  because the closures were a result of an unforeseeable business circumstance. Under the WARN Act, a company is not required to provide a 60-day notice to its employees if an unforeseeable business circumstance is what caused the plant closing.

In the case of an unforeseeable business circumstance, the company only needs to provide as much warning as is reasonably possible. ITT Educational Services, Inc. could potentially argue that the imposition of sanctions by the federal government was an unforeseeable circumstance that made it impossible to continue operations. On its website, ITT Educational Services, Inc. claims that it had no intention of closing the ITT Tech educational services until the sanctions prohibiting it from accepting federal loans were imposed.

Danger Was Foreseeable

However, the company had been evaluated and monitored by the federal government with the threat of sanctions if certain changes were not implemented by a certain date. Also, Corinthian Colleges, a for-profit education company similar to ITT Educational Services, Inc., shut down operations just over a year ago after going through the same evaluation process and being given the same sanctions as ITT Educational Services, Inc. Thus, it could be argued that ITT Educational Services, Inc. should have been able to foresee that they may be put into a position of having to shut down operations shortly after the deadline provided by the government, and should have provided its employees with a warning of a probable closure.

Even with the availability of two possible defenses, it does appear that ITT Educational Services, Inc. may have owed its former employees a 60-day warning for the educational facility closures. If the court does find that the employees were owed a warning, then ITT Educational Services, Inc. will owe its laid-off employees wages and benefits for the amount of time in which they were owed a warning, which would be 60 days in this case. ITT Educational Services, Inc. may owe even more money beyond the wages and benefits if the court determines that the company should have also provided notice  to local governments of the intention to close its educational facilities.

Mass layoff and plant closures have a seriously negative economic impact on local communities when they happen. If a large employer such as ITT Educational Services, Inc. fails to provide an adequate warning about a mass layoff, then the economic impact cannot be mitigated by the former employees finding new employment to replace their former employment with little to no gap between periods of employment.

Thus, it is important to enforce laws such as the WARN Act. If you have recently been laid off suddenly without warning, you may be entitled to back wages under the WARN Act or another federal law.  To find out if you are entitled to such compensation, contact an employment lawyer today.

Stephen Colbert Asked to Change Television Persona

Stephen Colbert, known for his political satire and witty social commentary, has inadvertently run into some intellectual property issues regarding his persona. Formerly of “The Colbert Report” which was the intellectual property right of Viacom, Colbert is now the host of “The Late Show” on CBS. Viacom insists that the Stephen Colbert persona and image no longer be used, as it is their intellectual property. Colbert aimed to create an alternate persona by identifying himself as “Stephen Colbert,” a twin identity to his well-known and celebrated image. This is not likely to hold much weight in court if a lawsuit is initiated.

The “Character” of Things

There are many different angles to this issue. For one, there is an obvious copyright implication. In the copyright world, stock characters generally are not given protection. Under the Copyright Act, before something is given copyright protection, the work must meet a certain level of creativity. A stock character, such as a cliché action hero is not given protection because it is generic and lacks the threshold creativity to warrant protection.

However, in this case, the Stephen Colbert persona is quite unique and is associated with the satirist himself and not a particular genre or other individuals in the same field. Of course, this is a matter that would be decided by the jury. If the jury associate the Stephen Colbert persona with Stephen Colbert himself and not that genre, then Viacom has a strong claim of intellectual property over the persona. Colbert

When it comes to a character, such as Bart Simpson or Batman, the question of whether there is copyright over that particular character depends heavily on the medium. Copyright law treats literary characters quite differently from visual characters. The standard is higher for a literary character. A literary character such as Tom Sawyer will be protected as a copyright work only if that character is essential to the story being told. In other words, if a character is merely an afterthought, then that character will not receive copyright protection. On the other hand, a visual character does not require the same standard.

For example, the xenomorph from the movie Alien will only have copyright over it if it is delineated; in other words, if it is fleshed out enough to be identified on its own. This is a lower standard and is easily met. Here, as Colbert is a visual character, it only has to meet this lesser standard. It goes without saying that the Colbert persona is a character with enough depth and substance to stand on its own, and as a visual character nonetheless, Viacom will be able to meet this standard.

Hence, Viacom might have a good shot at claiming copyright over the original persona developed on “The Colbert Report.” At the same time, Colbert might be able to create his own persona, a la this twin cousin. If the original persona and this doppelgänger of sorts can be viewed as separate concepts by everyday viewers, then Colbert can claim that it is a different character altogether. This will be difficult to do of course as both characters seem quite similar and not enough distinction is between them to set them apart.

Another side to all of this is the work-for-hire doctrine. Under copyright law, if a work has been done on behalf of someone else, the rightful owner of the copyright is the person who requested for the work to be done. In other words, the author or creator of the work doesn’t actually have ownership rights; instead it is the person who commissioned the work. If Viacom can establish that they in fact commissioned the work, which is likely the case as they funded the show and put Colbert on the seat, then they will have copyright over the persona.

Trademark Law

Aside from copyright implications, there are potential trademark issues here as well. Can the Colbert persona be viewed as brand imaging? Is there consumer confusion? There can be a potential trademark to the Colbert persona if it is viewed as a consumer brand. Trademark is easier to establish than copyright, as it is rather easy to place a trademark on something. If Viacom can establish that the Colbert persona is a trademark and that consumers identify with that persona when investing their time or money on it, then it will be deemed a trademark that belongs to them.

Change of Hands

Licensing is a big part of this kerfuffle. If licensing terms are clearly laid out, then it will become quite clear who owns the intellectual property rights to the Colbert persona. Even if Colbert decides to invent an alternate persona, there might be restrictions to this that are expressly stated in the license. Ultimately, this is something that will be addressed if the issue is taken to court.

Pokémon Go Now Catching Lawsuits

Unless you’ve been living under a rock, you probably have heard about Pokémon Go.

Pokémon Go has become a popular national pastime. It is an augmented reality game made for iPhone and Android devices. Once people download the app, they are asked to travel to a fictional world so they can collect every Pokémon creature. What they end up doing is traveling to public places, but also to private properties and places of business in order to “catch them all.” There have also been stories of people getting severely injured, even falling off cliffs or getting hit by cars, while playing the popular game. Now, the creators of Pokémon Go are fielding a slew of lawsuits.

Class Action Lawsuit for Personal Injury

The creators of Pokémon Go may be looking at a class action lawsuit as the amount of people who suffer various personal injuries while playing the game increases. As if texting and driving weren’t bad enough, many players play Pokémon Go while driving, and it’s only a matter of time before one of those players causes a horrific accident.

In Florida, two teenagers playing the game in a car parked in a residential area were shot at by a man who believed they were burglars. A group of young kids playing in Hawthorn, Wiltshire, became lost in caves and had to be rescued. And there are numerous other instances of personal injuries sustained while playing the game.  March of the Pikachu

How does Niantic, Pokémon Company, and Nintendo, the creators of Pokémon Go, avoid liability? The creators included a friendly welcome that warns players to abide by local laws. The game’s terms of service also explicitly state the following:

Players should be “aware of your surroundings and play safely. You agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services.”

There is legal precedent which establishes no liability for the makers of video games. The most famous lawsuit against a video game company was filed by the widow of a teacher who was killed in the Columbine High School massacre. The widow sought $5 billion in damages. The judge ruled that none of the defendants named in the lawsuit were liable for the slain teacher, primarily because “the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.”

But a case against Pokémon Go creators is different. The game very clearly puts people in harm’s way by making them collect characters in these dangerous places – while driving, on private property, in the middle of the street, etc. Nevertheless, they have a very well-crafted statement which states that the players assume the risk of playing the game and that the players are responsible for any personal injuries sustained while playing.

Only time will tell whether a lawsuit against Pokémon Go for personal injuries will hold water.

Invasion of Use and Enjoyment of Private Property

A Michigan couple recently filed a class action lawsuit against Niantic, Pokémon Company and Nintendo, claiming the game has turned their neighborhood into a “nightmare.” Evidently a Pokémon gym and Pokéstop is located near their private cul-de-sac. Players are blocking driveways and parking their cars on private lawns. According to the complaint, players also peer into their windows and even cuss at them when they ask the players to leave.

The lawsuit alleges the placement of Pokéstop and Pokémon Gyms on or near private property constitutes invasion of use and enjoyment. The couple requested that the gym and Pokéstop be removed as stops near their home, but their request was met with generic responses via the company website.



<