As a result of the Covid-19 Pandemic and subsequent business closures across the country, many business owners and companies are looking to their property insurance policies for relief. Insurance companies are telling them that the losses are not covered.

Business interruption insurance typically helps replace lost revenue, taxes, payroll, relocations costs, loan payments and lease payments when a business is affected by a covered loss. According to the Insurance Information Institute, approximately one-third of U.S. small businesses carry interruption coverage. https://money.usnews.com/money/personal-finance/saving-and-budgeting/articles/what-is-business-interruption-insurance.

Multiple lawsuits have been filed around the country in response to these claim denials. https://www.sandiegouniontribune.com/business/story/2020-04-05/companies-thought-they-were-covered-for-business-interruption-insurance-not-really

Some state legislators and lawmakers have sought to ease the burden on small businesses and ensure that they are getting the coverage they paid for. Here in California, 33 Congressional Delegation Members have sent a letter to the California Insurance Commissioner demanding that they “exercise all authority to ensure the insurance companies comply with their business interruption policies. During this crisis, we must do everything possible to mitigate the devastating impact on small businesses due to the coronavirus pandemic.” https://www.natlawreview.com/article/33-members-california-congressional-delegation-ask-ca-insurance-commissioner-to. According to the California Insurance Commissioner Ricardo Lara, the Insurance Commission is “currently working with the insurance industry and business groups to find creative solutions during this unprecedented crisis to make sure our businesses survive, and we need this data to define the size of the problem.”

If you have experienced a business interruption due to Covid19, you may be entitled to assistance.

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Amidst the worldwide COVID-19 pandemic, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) is allowing healthcare providers to use technology that is non-HIPPA compliant.

HIPPA is the federal Health Insurance Portability and Accountability Act.  HIPPA regulations protect patients from having their private information disclosed by health care providers, or treated in a manner that puts the information at risk of being disclosed.

On Tuesday, March 17, 2020, the OCR announced, effective immediately, that it will exercise its “enforcement discretion” by not imposing penalties against healthcare providers for HIPAA-violations in certain telehealth circumstances.  Telehealth is the provision of medical services via remote methods, such as telephone or videochat. OCR will not impose penalties for HIPAA violations in the use of telehealth services, but only when used in good faith for treatment or diagnostic purpose. The service does not have to be directly related to COVID-19.  The healthcare provider may use a “non-public facing” (not available for public access) remote communication product if they would like to use audio or video communication technology.

Under the OCR’s notice, popular videochat apps such as the following may be used for telehealth, though they may violate HIPAA rules:

  • Apple FaceTime,
  • Facebook Messenger Video Chat,
  • Google Hangouts video,
  • Skype, or
  • Zoom

However, healthcare providers may not use:

  • Facebook Live
  • Twitch
  • TikTok
  • Or similar video communication apps that are “public facing”

Notwithstanding the relaxed rules, there are several vendors that represent they can provide healthcare video communication products through a HIPPA-compliant business association agreement. Some of these vendors are:

  • Skype for Business/Microsoft Teams
  • Updox
  • VSee
  • Zoom for Healthcare
  • Doxy.me
  • Google G Suite Hangouts Meet
  • Cisco Webex Meetings/Webex Teams
  • Amazon Chime
  • GoToMeeting

Allowing healthcare providers to continue to examine patients during the COVID-19 crisis, while limiting the risks of in-person exposure is a noble goal.  The obvious negative is that many of third-party communication apps, including those referenced by the OCR, pose privacy risks to the patient.  For the vast majority of us, the COVID-19 crisis will be over in due time.  But our personally-identifying information, such as our names, addresses, and social security numbers, is a lot more difficult to change. 

In our opinion, if a healthcare provider intends to utilize a non-HIPPA complaint communication vendor or application, that should be disclosed to the patient and their consent should be obtained – at a minimum. The patient should be informed prior to consenting that using the service may put their private information at risk.  The healthcare provider should take reasonable steps, no matter what particular service is being used, to enable available encryption and privacy protection settings, if available.  HIPAA-complaint vendors and technology should be the clinician’s first choice.

Find the OCR’s Notice here:  https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html

For additional information: https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf

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Hospitals across the country are discussing the possibility of universal do-not resuscitate orders for coronavirus patients. According to an article in the Washington Post, hospitals are facing the reality of balancing the risk to hospital staff posed by resuscitating infected patients and attempting life-saving treatment. https://www.washingtonpost.com/health/2020/03/25/coronavirus-patients-do-not-resucitate/. According to the article, ‘[s]everal large hospital systems … are looking at guidelines that would allow doctors to override the wishes of the coronavirus patient or family members on a case-by-case basis due to the risk to doctors and nurses, or a shortage of protective equipment, say ethicists and doctors involved in those conversations. But they would stop short of imposing a do-not-resuscitate order on every coronavirus patient.”

These conversations are happening in the context of a larger discussion about the availability of resources such as hospital beds, intensive care unit beds, and ventilators in the face of rising demand as the Covid-19 pandemic continues to spread. Hospitals are also struggling to provide necessary protective equipment to nurses and doctors providing lifesaving care to these critically ill patients. “[A]s cases mount amid a national shortage of personal protective equipment, or PPE, hospitals are beginning to implement emergency measures that will either minimize, modify or completely stop the use of certain procedures on patients with covid-19.” https://www.washingtonpost.com/health/2020/03/25/coronavirus-patients-do-not-resucitate/

These news stories have caused many families to consider whether they should have advanced directives in place.

La Crosse, Wisconsin, a town with about 50,000 people, has some interesting lessons we can learn about the benefits of making informed decisions about our end-of-life care. Several decades ago, public health officials and major health organizations began developing a model for end-of-life planning and decision making. By 2009, 96 percent of the residents in La Crosse County had an advanced directive in place. This public policy initiative has benefited families and patients in many ways. Families are relieved from some of the emotional and financial stress that comes along with end-of-life care. https://www.forbes.com/sites/offwhitepapers/2014/09/23/how-to-die-in-america-welcome-to-la-crosse/#70188126e8c6.

“There is no more gut-wrenching decision to make for family members than when to let go allowing a loved one to end life peacefully. Knowing in advance the patient’s desires can relieve anxiety and grief by ‘following their final wishes.’” https://www.forbes.com/sites/offwhitepapers/2014/09/23/how-to-die-in-america-welcome-to-la-crosse/#70188126e8c6.

These are important decisions that every individual and family must consider. You have a choice to make informed decisions about the care that you receive and plan in advance.

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In response to the COVID-19 crisis, California health officials have extended the special enrollment period for eligible individuals to sign up for health insurance through Covered California. These health insurance plans are subsidized plans for individuals without employer-sponsored health insurance. Several states around the country are re-opening their own health insurance exchanges for a special enrollment period as well. https://www.npr.org/sections/health-shots/2020/03/20/818981380/9-states-reopen-aca-insurance-enrollment-to-broaden-health-coverage.

Although Congress has passed legislation that provides for free coronavirus testing, the subsequent healthcare you might require is expensive. Individuals who do not have health insurance could end up with large medical bills through no fault of their own. A hospitalization lasting several weeks could cost tens of thousands of dollars without insurance according to some studies. https://www.healthsystemtracker.org/brief/potential-costs-of-coronavirus-treatment-for-people-with-employer-coverage/. Many uninsured individuals will find themselves in a difficult position deciding whether they should seek treatment and risk suffering from the dire financial consequences. Public health officials and experts have expressed concern about the impact of individuals avoiding testing and treatment stating that “uninsured residents who don’t get tested for the novel coronavirus because of the fear of the costs of testing and treatment would represent an ‘extremely weak link in the response chain and would make things much worse.’ ” https://www.npr.org/sections/health-shots/2020/03/20/818981380/9-states-reopen-aca-insurance-enrollment-to-broaden-health-coverage.

According to the US Census Bureau, the number of people in the United States that do not have health insurance is approximately 28 million. https://www.census.gov/library/publications/2019/demo/p60-267.html. If you are uninsured, please contact Covered California to discuss your options.

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In light of the recent COVID-19 crisis, California Advocates for Nursing Home Reform (CANHR) is demanding new directives to keep residents safe.

The CDC has issued updated guidance to all nursing homes in an attempt to prevent the spread of COVID-19 in nursing homes. These measures include:  restricting all visitation except compassionate care situations; restricting all volunteers and non-essential healthcare personnel; canceling all group activities and communal dining; and active screening of residents and healthcare providers.    https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-term-care-facilities.html

Here in California, the restrictions are being extended to state nursing home surveyors who normally provide oversight to detect “life-threatening infection control problems” and understaffing.  CANHR is calling for the California Department of Public Health take action to protect nursing home residents when they need it the most.

  • Reassigning nurse evaluators to monitor nursing homes onsite throughout the state until the crisis passes;
  • Closely monitoring nursing home staffing levels on a daily basis;
  • Issuing a moratorium on involuntary transfers and discharges of residents;
  • Ensuring nursing homes provide meaningful, frequent, and safe opportunities for residents to maintain contact with loved ones remotely until visitation is restored.

CANHR has a website specifically dedicated to provider alerts, news and resources regarding the COVID-19 Crisis as it relates to nursing homes. http://canhrcovidnews.com/ If you believe a loved one has been injured through neglect or abuse at a nursing home or residential care facility for the elderly, contact our offices at (619)238-8700.

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Nursing homes and assisted living facilities have now gone to stricter measures to try to contain the threat of COVID-19.

Due to the novel coronavirus, homes have gone from asking guests to sign in and disclose prior travel, then to taking their temperature, to now requesting all nonessential visits be postponed indefinitely and ordering that residents not leave the facility nor their rooms. Many of these homes have graduated levels of care, from relatively independent living to more intensive physical and memory care. The continuing care community is at high risk as is widely known. Many individuals who succumb to the worst ravages of the virus already have underlying medical conditions. For safety of individuals and the community, administrators do not want residents with the ability to come and go on their own to participate in events with crowds or groups of more than ten people. The extreme precautions being undertaken at some homes include ordered complete isolation simply due to risk, aside from any testing or suspicion of infection.

At this point, as of this writing, most of these facilities have suspended group exercise classes and all other activities, and have made changes to their dining rooms, allowing only take-out meals, or delivering food or food choices on trays to rooms of individuals ordered isolated there.

Those who think they must visit any group living facility for elders should be ready to have explicit, important reasons to be there. Many homes are running low on supplies, and do not have the items needed to properly protect their residents, nor the resources to deal with visitors who must be turned away. Many homes were ill-equipped in the first place, through understaffing or undertraining. Compare your home’s track record:
https://www.medicare.gov/nursinghomecompare/search.html

Aside from providing love, company and a familiar friendly face, families also provide important monitoring and oversight of the care people are receiving. There are of course also concerns for those with dementia deteriorating without routine and regular stimulation and communications. The timing is bad in these situations, because family would like to be there more frequently and prevent the decline of the disease of dementia often exacerbated by isolation, loneliness and depression.

Stopping physical visits shouldn’t mean curtailing all communications from family and friends. Contact the home directly and ask that they help your family member get on-line, work email and do Skype or Facetime. A useful device to make authorized drop-in virtual visits without a lot of tech to handle for the elder is “Echo Show” which you can interface with through the Amazon Alexa app on the iphone app store. At the very least, make regular old-fashioned phone calls to keep tabs on your elder. Here are some useful links:
https://www.aarp.org/home-family/personal-technology/info-2020/vr-social-connections.html ;
https://www.aarp.org/caregiving/health/info-2020/preventing-coronavirus-in-nursing-homes.html

In some cases, families may want to take their loved one home with them, and that is being encouraged in some facilities, with the proviso that they then may not be permitted to re-enter until further notice. It may not always be the most wise choice. (See the second link in paragraph above for more details.) However, it may be hard to remove a resident, especially if they are very frail, have a chronic condition, or need a high level of care, or memory assistance. Be sure to have a plan in place for bathing, feeding and taking medicine. If you hire a home health agency, be sure to check them out well. Ask the agency what measures and precautions they will be taking when caring for your loved one. Monitor them. Anyone providing hands-on care should be following the current recommendations by the CDC.

Hope this information is helpful in some way to flatten the curve. Or, at the very least, hope it helps you stay as close as you can to your loved ones during these unprecedented circumstances. (Remind them to hydrate!) Be well.

If you believe a loved one has been injured through neglect or abuse at a nursing home or residential care facility for the elderly, please call us at (619) 238-8700

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Just as we must collaborate to safeguard our society and banish COVID-19, so too is it necessary for us to unite in order protect the legal rights of our elderly citizens.

Healthcare lawyers can help in this crisis by providing patient advocacy, protecting the most severely affected including the elderly who are often not represented, especially when they are in nursing homes.

To slow the rising tide of the pandemic, family members and visitors are barred from visiting nursing home residents.  In a troubling, but not entirely surprising display of lousy timing, the Trump administration is also considering relaxing federal oversight on nursing homes, including rules meant to curb deadly infections among elderly residents. This is a foolhardy move on the heels of and in addition to CMS restricting nursing home visitors and non-essential personnel.

Who will protect our elderly and most vulnerable citizens if family and friends are denied access to them and nursing home oversight is relaxed NOW, in the middle of a pandemic? In these difficult times, we need more patient safety, not less.

Nursing homes house about 2.5 million people nationwide. Nursing home residents have already been identified as especially vulnerable to COVID-19. Because of their age and pre-existing health problems, the elderly are at an increased risk of not only contracting this virulent virus but also from dying from it. Nonetheless, the Trump administration announced plans to eliminate the requirement that nursing homes keep at least one infection-prevention specialist on hand.  These anti-infection specialists serve a key role, making sure nursing home staff stick to crucial safety rules, such as consistently washing their hands.

Recently, 31 coronavirus deaths were linked to a single long-term nursing home in Kirkland, Washington. The New York Times points out that as recently as last year, this same Life Care Center facility received multiple citations related to failings in its infection control systems.  This is precisely the type of risks anti-infection specialists are employed to prevent and to manage.

Now is the time to ramp up oversight of our countries’ nursing homes– when their loved ones are banned from visiting them and there is no one else able to watch over their care.

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Pedestrian Deaths Up By 35%

Recently, Smart Growth America released Dangerous By Design 2019, a report containing the results of their investigation of traffic accident data across the United States.  Smart Growth America is a non-profit organization that works with local and national governments and leaders to encourage safe development.

The report finds that pedestrian deaths on and around American roads increased 35% from 2008-2017. Pedestrian travel increased less than 1% during the same period.  Why are pedestrian deaths rising at such an alarming level, while the number of people walking is remaining essentially flat?

Why Is It Getting More Dangerous to Walk?

The Smart Growth report points the finger squarely at poor road design:

“Our federal policies, standards, and funding mechanisms that have been in place for decades produce dangerous roads that prioritize high speeds for cars over safety for all people.”

So where are the most dangerous places in America to talk a walk? Florida tops the list with a whopping 7 communities landing in the top 10 most deadly.  Our own Bakersfield, California is listed as the 7th most dangerous community overall.  Smart Growth reports that communities of older Americans, people of color, and low-income residents are the most affected by unsafe road design.

What Can We Do?

What can be done to push back against road designs that put pedestrians at risk?  Lawsuits against governments that design or approve unsafe road plans can be powerful tools.  But government immunities from criticism by lawsuits, such as “design immunity” in California, put up steep obstacles to such claims.  Design immunity prevents a government from being held liable for many discretionary decisions made by government officials.

It is recommended that if you or a loved one have been injured in a way that might suggest road design is even partially to blame, that you consult with a Pedestrian Injury Attorney, or Defective Road Design Attorney immediately, such as the attorneys at our law firm.

See the full report for a complete listing of the most dangerous communities in America for pedestrians, the most vulnerable populations, and an interactive map of the data collected by Smart Growth.

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Federal Tort Claims Act and the Feres Doctrine

Suing the Federal Government for negligence can be a daunting task. There are very strict requirements that you must follow in order for your rights to be protected. Our experienced attorneys are here to help.

Under the Federal Tort Claims Act, an individual may file a lawsuit against the federal government for injuries incurred as a result of the negligence of a government employee. In Feres v. United States, the Supreme Court concluded that members of the United States armed forces could not bring a claim under the FTCA for injuries related to their military service. (Feres v. United States, 340 U.S. 135, 138 (1950).) It is important to note that the Feres Doctrine only applies to active duty military members. It does not apply to claims brought by military spouses, dependents, or retired military personnel for injuries suffered as a result of the negligence of a government employee. Several cases have applied the Feres Doctrine to expand its scope and further limit the rights of active duty armed forces personnel when they have been injured by the negligence of government employees at military hospitals.

A lawsuit filed on behalf of an active-duty nurse who died after giving birth at a naval hospital intends to change that. In 2015, Walter Daniel filed a wrongful death lawsuit on behalf of his wife, Rebekah Daniel. In the lawsuit, Mr. Daniel alleges that the medical staff at Bremerton Naval Hospital were negligent in caring for his wife when she began experiencing significant post-partum hemorrhaging. The Western District Court of Washington dismissed the lawsuit citing the Feres Doctrine. Mr. Daniel appealed the decision to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the District Court’s ruling concluding that the “case was barred by the Feres Doctrine” because the injury was “incident to [her] service.” (Daniels v. United States, 889 F.3d 978, 982 (2018).) The Court further stated “[i]f ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.” (Id.)

After a rehearing in front of the Ninth Circuit was denied, Mr. Daniel set out to determine if the Supreme Court would do just that – carve out an exception to the Feres Doctrine and allow him to pursue justice for his deceased wife. Mr. Daniel has filed a petition to have the Supreme Court of the United States review his wrongful death lawsuit.  It remains to be seen if Supreme Court of the United States will grant the petition and reconsider this archaic judicial doctrine. You can follow the Supreme Court and read its opinions at https://www.supremecourt.gov/opinions/slipopinion/18.

Our attorneys have successfully litigated multimillion dollar Federal tort cases against the United States government under the FTCA. If you are a military spouse, dependent, retired military personnel, or your child was injured at birth in a government hospital, you may be entitled to compensation. Please contact Mulligan, Banham, and Findley to speak with a lawyer about your rights.

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The most devastating fires in California’s history are still burning at the Camp Fire in Northern California and the Woolsey/Malibu Fire in Southern California —yet already there is talk about changes in California laws regarding fire liability. While consumer advocates will struggle to revoke the utilities’ ability to pass on the costs of fires, it is expected that utilities will seek immunity to further limit their exposure to liability.

Mulligan, Banham & Findley are investigating claims about the recent California fires. Call the number on this page, or use our Contact Form, to tell us about your experience.

Threatening to declare bankruptcy after PG&E was found responsible for previous fires, this utility company spent over $10.5 million dollars just last year lobbying the state legislature[i] with the hope of currying favorable laws. It is reasonable to assume their lobbying efforts are not at an end, and in fact, they will probably step up their efforts.

In response to lobbying, earlier this year, the California legislature enacted Senate Bill 901.  Unless amended, starting in 2019, this new state law will, under certain conditions, pass the expense of fire liability costs on to consumers and allow utilities to sell bonds to offset fire liability costs. While this new legislation won’t affect liability for the pending fires, it will give utilities a possible pass for future calamities. Before it even comes into effect, this new legislation should be amended to prevent utilities from passing the costs on to consumers.

Utility companies balk at California courts using a “strict liability” approach to hold utility companies accountable for fires caused by their equipment, regardless of negligence in maintaining the equipment. Why? Because electricity is inherently dangerous and it is well established that utility lines must be properly maintained and surrounding trees and vegetation must be frequently cleared away from power lines or devastating fires can occur. [ii]

Preliminary investigation reveals PG&E utility’s role in triggering the pending Camp Fire. This devastating fire obliterated much of Paradise and devastated surrounding Butte County, resulting in over 63 deaths, 631 or more people still missing and the destruction of over 7,600 homes–as of the time of this blog post.  What did PG&E do… or more accurately, what didn’t this utility do that contributed to the fire? The utility company neglected to clear trees that were interfering with lines, as required by law.   Just fifteen minutes before the blaze erupted, PG&E reported a power outage on an electrical transmission line in the immediate vicinity of where the fire sparked. While PG&E evaluated whether to shut down power lines in the area, it neglected to do so. To literally add insult to injury, PG&E is grossly underinsured with approximately $1.4 billion for the pending fiscal year, while some estimates for the Camp Fire exceed $15 billion dollars,[iii] or more than ten times the available insurance coverage.

Similarly, the massive Woolsey fire in Southern California was also apparently triggered by failure to clean up a contaminated utility subsite as previously contractually required. [iv]  The fire reportedly began about 1000 yards away from the site of a 1959 partial nuclear meltdown of a reactor, on property located at Santa Susana Field Laboratory (SSFL or Rocketdyne).  Two minutes before the Woolsey fire began, Southern California Edison reported an outage at its Chatsworth substation which is located at the SSFL complex, just a few hundred yards from the site of the previous partial nuclear meltdown.  This substation was originally built to provide electricity from the reactor. Just last year, the U.S. Department of Energy, NASA and the Boeing Company signed binding agreements to clean up this  contaminated SSFL site but never took any steps to do so.  While the investigation is ongoing, some maintain that the “Woolsey Fire likely released and spread radiological and chemical contamination that was in SSFL’s soil and vegetation via smoke and ash,” according to Dr. Bob Dodge, president of Physicians for Social Responsibility-Los Angeles. While all wildfire smoke can be hazardous, independent testing and air monitoring is pending to prove whether the Woolsey fire released radiation and other hazardous chemicals into the air, contributing to the fire as well as increasing risks to the public from toxic air contamination.

Given predictions for continuing Santa Ana winds and more fires in California’s future, the worst is yet to come. Unless the utility companies who contribute to devastating fires are held accountable to the families who lost lives and homes, there is no incentive for the utilities to change their ways.

If you have been affected by the California wildfires, read more HERE on how we can help. 

Janice F. Mulligan

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[i] Maclachlan, Malcolm. (November 14, 2018) “Legislators to Take Up Fire Liability”  Los Angeles Daily Journal p 1

[ii] California Public Resources Code 4292, 4293 , 4435 General Order No 95(above ground electrical wires) and 165 (inspection cycle)

[iii]  Franck, Thomas (November 15, 2018) “PG&E Has Lost Half its Value This Week as Shareholders Fear utility’s role in California Wildfires”. CNBC     https://www.cnbc.com/2018/11/15/pge-has-lost-half-its-value-as-shareholders-fear-its-role-in-ca-fire.html

[iv] Duffield, Denise (November 12, 2018) “Massive Woolsey Fire Began on Contaminated Santa Susana Field Laboratory, Close to Site of Partial Meltdown” Physicians for Social Responsibility

https://www.psr-la.org/massive-woolsey-fire-began-on-contaminated-santa-susana-field-laboratory-close-to-site-of-partial-meltdown/

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