Independence Day Thoughts

The United States of America is 243 years old. Recall that our Declaration of Independence mentions unalienable Rights, including Life, Liberty and the pursuit of Happiness. Our Constitution, enacted in 1787 begins with the words “We the People of the United States………….”

No mention is made in the beginning of these documents regarding governments, corporations, media, and social media. To me, the above language is striking as it both defines our nation as a collection of People and provides certain rights. Implicit is that We the People have an obligation to be educated and informed, to acquaint ourselves with our neighbors, coworkers and others as we are all identified as “We the People.” A social obligation exists to assert and protect our rights and to do the same for others. Consideration of issues that impact us all require time and effort to be true Americans so that our country and our society not be taken from us.

More specifically, we have an obligation to maximize our pursuit of happiness and our liberty. Rather than empty words, effort is required to call out those entities that do not function for the common good. The vast majority of us want to exercise our inalienable rights properly and fully. A small minority encourage evil. At times it seems as we disregard our education and intellect and fall prey to a lack of due diligence to seek the truth on issues that affect We the People. Has technology improved our intellects or has it numbed us?

The Battle of Gettysburg was fought on these days in 1863. Take a moment to locate and read letters from soldiers, that demonstrate an ability to communicate in writing, better than today’s norm. While some of these letters are from well educated people most are written by young, less educated persons but all such letters demonstrate passion, intellect and an ability to communicate.

We the People are imperfect beings. Our history consists of many negative events as well as positive ones. Negatives cannot be ignored, nor erased from our history. To the contrary, we must be aware of the human failings of our predecessors and strive to be better citizens and persons. We the People owe it to Americans past, present and future to fulfill the rights and responsibilities of our Declaration of Independence and our Constitution.

– Allan Opsitnick

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Driving Into the Future… Maybe

As technology has progressed, even in the past two decades, there have been some stunning advancements in virtually every field. One that is on the verge of breaking free is the self-driving motor vehicle.

Honestly, who hasn’t thought about the idea of a car that could drive itself? Simply plug in a destination and the car gets you there without you having to do anything. You could relax, read a book, watch a movie or even take a nap and make it to your destination.

However, there are potential downfalls and legal issues that come with the idea of the self-driving car. In a “normal” car, the driver is held responsible for actions that happen behind the wheel and that is why we’re required to purchase insurance. However, with self driving vehicles, who is held responsible in the event of an accident? If the driver is not physically in control of the car, then who is to blame? And who would hold the insurance? The buyer? The manufacturer? Some government created body?

Another potential issue is a computer failure in the car. While mechanical and electronic failures can occur with operator driven cars, self driving technology is far more advanced and comples. If the self driving system gets a bug, this could lead to catastrophic consequences. In essence, the driver is at the mercy of the computer that is running their car, which has been programmed by someone to make decisions based on a series of data that it processes during the drive. Also concerning is what happens if an owner of a self driving vehicle attempts to repair or alter the vehicle himself or doesn’t bring it back to the dealership for a required update? Who would be liable in that case?

Just looking at a few of these possibilities, the idea of a self-driving car is no doubt an exciting thing. And on paper, it could definitely make life a lot easier for people. However, I don’t believe that technology has quite gotten to the point to make it feasible right now. Human drivers are not perfect, however, the human factor is a known risk. Self driving technology is not.

– Zach Opsitnick

Wait! YOU are suing ME?

In October, 2017, a mass killing occurred in Las Vegas, as a maniacal guest, Stephan Paddock, at the Mandalay Bay Hotel and Casino opened fire from a 32nd floor suite, raining bullets on a nearby crowd of concert goers. 58 were killed and about 500 were wounded.

Lawsuits were filed in some cases, with many other suits planned in others. The possible financial exposure to MGM Resorts International, owners of Mandalay Bay is in the hundreds of millions of dollars.

Unexpectedly, in mid 2018, MGM brought suit in Federal Court in Las Vegas against over 1000 persons who have either filed suit or are potential plaintiffs. This suit, called a Complaint for Declaratory Judgment, does not seek monetary damages, against the class of plaintiffs and potential plaintiffs, but seeks a court ruling in MGM’s favor declaring that MGM has no liability in this tragic, bloody event.

MGM’s strategy is to invoke a federal law, enacted in 2002, entitled the Support Anti-Terrorism by Fostering Effective Technologies or Safety Act, which purportedly limits liabilities and therefore claims for death, injuries and damages against MGM. As the MGM Complaint in Declaratory Judgment states:

In the case of Paddock’s mass attack, certified technologies or services were deployed by a professional security company, Contemporary Services Corporation (CSC), which was employed as the Security Vendor for the Route 91 concert. As alleged in more detail below, Paddock’s mass attack meets the requirements of the SAFETY Act as set forth in the statute and the Regulations promulgated by the Department of Homeland Security. MGM contends that this attack was a “mass attack” under the law, which law was designed to apply to terrorism.

As CSC was in fact certified as a security agency, for the concert where concertgoers were killed and wounded, MGM requests that all suits be transferred to or initiated in Federal Court and not in any state court. Also, MGM contends that the law limits liability claims only to the security agency and not the company that hires the security agency.

MGM is asking the Federal Court, then, that all claims against MGM be filed in Federal Court and then dismissed as barred by the Anti-Terrorism Act, which if granted, would free MGM from any legal responsibility for the slaughter.
The litigation is continuing and mediation sessions have been scheduled. Mediation is court supervised settlement discussions. You will be kept abreast of developments.

The impact of the family of a deceased loved one, or a person who has been injured as a result of this shooting cannot be comprehended, as these people are now defendants in a suit by the huge, faceless, wealthy corporation that may well have been a cause of this carnage.

Allan Opsitnick

Forty Years An Attorney

I’ve been practicing law for 40 years. Difficult to believe. When I began my practice, I was childless. Now I have two adult kids and a grandchild. When I began my practice, both of my parents were alive, now, I’m blessed to have my father still with me. Both of my parents saw me argue before the US Supreme Court, though.

When I began my practice, there was no internet, cell phones, e-mails or the rest of the technological torrent that has immersed us. I could not file and search for documents and other information online. Legal research could only be conducted in a law library using books.

So much has changed. So much remains the same. While innovations have changed the trappings of legal practice, my mission for 40 years remains the same; to solve problems for clients. To fight for clients. To place clients in the best possible position, making the future better.

This milestone in my practice has energized me, realizing that I am beyond the midpoint of my profession career. I pledge my full efforts and respect to my clients and am grateful for you continued trust.

Allan Opsitnick

Legal Snapshots #1

Just a few legal issues that affect many of us:

1. NEW MEDICARE CARDS: For those of us who are Medicare eligible, new cards are being distributed. Unlike the prior cards, which contained the users Social Security Number, the new cards contain a unique 11 digit identification number. The new identification number will be a mix of numbers and letters. This is something long past due. BUT, like everything else, scams exist by unscrupulous people attempting to call, mail or email Medicare participants to obtain that new, unique identification number. DO NOT COOPERATE! DO NOT PROVIDE ANY INFORMATION! Destroy your old card and provide the new identification number to your health care providers, and no one else.

2. ABOUT YOUR DOORBELL AND TELEPHONE: As someone with a nonagenarian parent, and other family members, a personal concern is when the doorbell or telephone rings. As mentioned above, older folks are attempted victims of thieves, seeking personal information, funds and access to the home. So, remember this: YOU HAVE NO OBLIGATION TO ANSWER YOUR DOOR OR ANSWER YOUR PHONE. If you do not know who is outside your door, don’t answer the door. If you do not recognize the phone number of a caller, don’t answer the phone. If the door bell ringer is legitimate, some information will be left, or you will not beforehand that, say, a repair person is coming. Likewise, if a caller is legitimate, a message will be left. This cautious procedure will minimize the chance of being taken advantage of.

3. FULL RELEASE LANGUAGE ON CHECK ENDORSEMENT: I recently received a check from Delta Airlines as compensation for serious damage to my luggage. The back of the check, which I endorsed and deposited, contained this language:

ENDORSE HERE
The undersigned by endorsement below acknowledges receipt of this check as full settlement of and hereby releases Delta Airlines Inc. from any and all claims the undersigned may have against Delta Airlines Inc. to this date.

So, what does this mean? I endorsed the check as I had no pending claims against Delta other than my destroyed suitcase. But what if I had an ongoing dispute about a ticket issue? Or frequent flyer points? This release language is, in Pennsylvania enforceable, as an “accord and satisfaction.” The release language is clear, limited to past and current claims and offers payment in exchange for the amount offered. Thi is, in essence, a contract. The Uniform Commercial Code, which is law in Pennsylvania and most states, applies here. When faced with a similar type or release on a check, think the situation through to be sure that any pending claims that you have against the maker of the check are satisfied. Again, this provision does not affect any future claims.

4. OUR FREEDOMS: Our office will periodically blog a look at the Bill of Rights, during the rest of 2018. The times we live in create many powerful issues that affect our rights, with just a few examples:

– What are our rights as to firearms and what can be restricted?
– What are our limitations as to public speech and demonstration?
– What rights or limitations affect us as to the internet and social media?
– What can government properly do and not do?

Please stay with us for an interesting and exciting 2018.

– Allan Opsitnick

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Disclaimer: The information in this blog post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Allan Opsitnick, Opsitnick & Associates or the author of a blog post. This blog post is not intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.

Friend or Family, Client or Both? And, How Much Protection Does Paying Me $1 Get You?

Recent media coverage has focused on the “Attorney-Client Privilege” and “Confidential Communications” primarily in the context of the President and other political figures as criminal investigations proceed. Keep in mind that the same rules and protections that affect high profile persons and law firms affect everyone who is in contact with a lawyer.

There are actually two issues to discuss:

– When does an attorney-client relation form?
– What information, if any, that a client provides to an attorney is protected by the attorney-client privilege?

As to the formation of the attorney-client privilege I, like many other attorneys, spend much time communicating with friends, family, neighbors and others discussing legal issues and fielding legal questions. It is flattering that in a society with a multitude of lawyers, I still am barraged with queries on an ongoing basis. That we speak, e-mail or text about a legal issue and I provide some information, does not, of and by itself, create an attorney-client relationship. The Pennsylvania Rules of Professional Conduct apply to attorneys as to their duties, rights and conduct. All states have similar regulations.

In Pennsylvania, the attorney-client relationship is NOT automatically formed just because we discuss, for example, your issues with your neighbor and his trees. However, a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. For that prospective client to become a client, there must be an agreement with the attorney and the new client on the scope of representation; that is, what I am to do for my new client. The new client’s informed consent must be obtained, meaning that the new client should clearly understand that they want my office to represent them in a matter, so that I can proceed. As soon as practicable, the attorney-client relationship must be confirmed in writing. You the client have a right to know that my office is now representing you in a certain matter or matters, and what the fees shall be. A signed fee agreement is needed.

My goal is to be certain that we both know what I’m to do and also, what is expected of you, the client. You are the source of information and, at times, my efforts are stalled because of less that complete communications with the client.

And NOW, that attorney client privilege and confidentiality issue that is in the news.

In Pennsylvania, an attorney’s obligation to keep client information confidential even extends to prospective clients so if we discuss a legal issue, regardless of where, and you provide information to me, that information cannot be disclosed, even if my office does not ultimately represent you. Any information that is “significantly harmful” to you cannot be used or revealed.

An attorney’s duty to a client is to not reveal confidential information unless expressly authorized by the client, except in furtherance of the representation of the client. The confidentiality is not without exceptions though. Information from a client can be revealed if the lawyer believes that it is reasonably necessary to:

– Prevent reasonably certain death or substantial bodily harm
– Prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another
– Prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used
– Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
(There are a number of other exceptions, but they are generally not applicable in most situations.)

So, subject to the above exceptions, your confidential information is safe with me. Your information about actions taken, at times regrettable, thoughts and ideas that you express regarding my representation of you and the like, are not disclosable and will not be disclosed. Your secrets are safe with me.

About That $1:

In Breaking Bad, attorney Saul Goodman tells his kidnappers to pay him $1 so that all future information is subject to confidentiality. In real life, no money or other consideration need to be exchanged for the attorney client relationship to be formed. If we agree that I am to provide legal service for you, I am your attorney and you are my client. Save the dollar for later.

– Allan Opsitnick

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Disclaimer: The information in this blog post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Allan Opsitnick, Opsitnick & Associates or the author of a blog post. This blog post is not intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.

 

Your Right to Informed Medical Consent

Recently, I underwent orthopedic surgery for a debilitating back condition. My surgeon and I discussed whether or not I was satisfied with my pre-surgical condition and, when I emphatically stated no, the planned surgery was explained to me by the surgeon. This discussion included the likelihood of failure, the degree of difficulty, the possible negative effects and post-operative limitations. After this discussion, I reiterated my desire to have this surgery performed. (As of this writing, the surgery has worked very well. My decision was the correct one.)

Legally, any patient undergoing certain medical procedures is entitled by law to receive Informed Consent. Informed Consent requires that the nature of the procedure, likelihood of success and failure and alternatives to the procedure are to be presented to a patient by a physician. Previously in Pennsylvania, Informed Consent was permitted to be obtained by a staff member of the physician performing the procedur. Earlier in 2017 however, the Pennsylvania Supreme Court, in the case of Shinal v Toms M.D., held that only a physician can obtain Informed Consent.

In the Shinal case, Mrs. Shinal underwent an open craniotomy total resection, performed by Dr. Toms. During surgery, Dr. Toms “perforated Mrs. Shinal’s carotid artery, which resulted in hemorrhage, stroke, brain injury and partial blindness.”
Mrs. Shinal and her husband then sued Dr. Toms for malpractice, alleging in part, that Mrs. Shinal did not receive Informed Consent before surgery as her consent was procured by a physician’s assistant employed by Dr. Toms and not from Dr. Toms directly. A decision in favor of Dr. Toms was ultimately appealed to the Pennsylvania Supreme Court by the Shinals. The Supreme Court held that Dr. Toms did not obtain informed consent from Mrs. Shinal, as he did not personally explain the surgery and its possibilities.

Under Pennsylvania law, if a medical procedure is performed without the informed consent of a patient, the procedure is a “battery” which is a civil wrong, regardless of whether or not negligence occurred. In a battery, a Plaintiff can obtain money damages.

The Pennsylvania Medical Care Availability and Reduction of Error Act, defines Informed Consent, as follows:
Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting the following procedures:

(1) Performing surgery, including the related administration of anesthesia
(2) Administering radiation or chemotherapy
(3) Administering a blood transfusion
(4) Inserting a surgical device or appliance
(5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner

The physician’s duty to obtain Informed Consent extends to a discussion of the following:

A description of a procedure and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.

The Supreme Court ruled that the duty of a physician is non delegable and that only the physician can provide the necessary information and obtain a patient’s informed consent. A patient has a right to “medical self-determination.” Also, a patient has the right to a direct dialogue and a two way exchange with a physician, who is obligated to “cultivate a relationship” with a patient. The Shinal holding contemplates a “back and forth, face-to-face exchange” which would be the product of direct communication between physician and patient.

What then does the Shinal holding mean to you? It means that your physician has the duty to take the necessary time to explain the procedure, any alternatives and any possible negative outcomes and to listen to you and respond to questions so that your decision to undergo a medical procedure or not is truly the product of Informed Consent.

Prepare for meeting your physician with a comprehensive list of questions and concerns and pose those questions and concerns to your physician. Do not rest until your questions and concerns have been addressed by your physician fully and completely.

Allan Opsitnick