Professional ethics

I am an attorney. A client posted a negative statement concerning a case that I handled for her. Am I allowed to respond?

The client in question agreed to the proposed settlement after I advised her that she was required under Proposition 213 to carry liability insurance. She did not express dissatisfaction with my services at the time.

Nathan’s Answer

If you are allowed to respond, consider that you do not violate attorney client confidentiality outright. There are reams of internet materials on how to manage this situation probably. The State Bar ethics hotline is also a very good idea as their paralegal research team is exceptional.

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Criminal defense

How or when to change an attorney would not affect the filing, response or status of my case so, where I do not harm it?

When is it recommended not to change lawyers when we are dissatisfied with this attorney's performances handling our case? At what stage in the case would it negatively affect the ongoing case and maybe affect its outcome from missed responses during the time with the current lawyer that we want to remove? We are at where the summons has been served and the 'court call' has been arranged. We are where we are in the middle of waiting for any response back, if any, from that other party. Thanks

Nathan’s Answer

It sounds like your attorney may have filed a case, and the court call is for the case management conference or maybe an OSC. If that's the case, it's too early to really tell if an attorney is not performing well this early in the game, if the other side hasn't even responded yet. Then again, you've tagged this under criminal law so everything I just said might be completely inapplicable. There's more to this story?

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Elder law

Skilled nursing facility will not allow patients to have food from the outside. This is a concern for one with constipation.

The facility does not serve fresh fruit, vegetables, or salads. It's always canned, cooked, or commercially prepared. A friend living there complains of constipation. Nurse said problem is taken care by colace or other chemical laxatives. There are better ways to deal with the problem. Perhaps I should bring up the concern to the attention of her conservator? What should the approach be?

Nathan’s Answer

One option may be the family council method of resolution:

Federal regulation §483.15(c), Participation in Resident and Family Groups, requires that:

- A resident’s family has the right to meet in the facility with families of other residents in the facility;

- The facility must provide a family group, if one exists, with private meeting space;

- Staff or visitors may attend meetings at the group’s invitation;

- The facility must provide a designated staff person responsible for providing assistance and responding to written requests that result from group meetings.

- When a family group exists, the facility must listen to the views and act upon the grievances and recommendations of families concerning proposed policy and operational decisions affecting resident care and life in the facility.

The following may be helpful: http://www.canhr.org/familycouncils/fc_organizing.htm

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Negligence and personal injury

No attempt to retrieve catheter that is now lodged in my heart. Does this sound like hospital protocol or negligence?

A nurse removed my IV before my release from 5 days in ICU. Most of the flexible tip was missing. I returned to ER the next day, arm swollen and in pain. Two US tests confirmed presence of a thrombus and probable catheter in a vein near IV site. A vascular surgeon was called to surgically remove both. He told me I'd be awake as he preferred to use a local for such a small incision. Once in the OR, I went right to sleep and woke up with a different Dr. telling me he got the thrombus but there was no catheter to get. Subsequent tests show a catheter shaped object lodged in my right atrium, ischemia and a LV EF as low as 39%. Should I be talking to a lawyer?

Nathan’s Answer

It sounds like you keep being victimized by negligent or careless behavior. I am not sure what is going on but you should speak with counsel to assess your case carefully. I sincerely wish you a speedy recovery considering your layered issues.

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Administrative law question

I have an administrative law question. I am being investigated by the Ca medical Board for a history of depression.

The medical board is investigating me because I have a history of depression. I was treated and now stable. During my most symptomatic period, I absented myself from practice voluntarily. There have been no professional or patient complaints against me. Yet the board seems to have the power to take action against my license based on my medical history alone,which would be devastating. I have done nothing wrong. Isn't my right to practice with a history of depression and no evidence of impairment,incompetence,negligence,etc. protected by the ADA? I have an administrative lawyer,should I also consider hiring a civil rights attorney/ADA advocate? What authority does the board have to discipline ( e.g. Punish me? ) for a history of mental illness absent professional misconduct,etc.?

Nathan’s Answer

How did you get on the Medical Board's radar if there were no complaints? Sometimes, anonymous complaints are enough to trigger investigation. If the depression can be linked to the practice of medicine in that it could impair it, the Board will likely overcome any ADA objections. Mental illness, if diagnosed, may require an evaluation by the Board - never a pleasant circumstance, but with proper preparation, it could be the first step to being cleared. On the other hand, the Board may be too intrusive if your circumstances don't warrant it. The takeaway here is that it will be necessary for you to consult with experienced counsel to assess your case.

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Medical malpractice

Would I have a case if I received a contaminated cornea while having a Cornea Transplant.

I received a cornea transplant in Sept.. In October(a month later), my Doctor received a report from the lab saying that my cornea was contaminated with yeast. My Dr said he was surprised and was not sure why it took so long for the report. I have had to have 2 additional cornea transplants and my natural lens removed because of this ordeal.

Nathan’s Answer

It sounds like you've suffered quite a bit. You should speak to an attorney ASAP since deadlines exist to file suit that can prohibit you from recovery.

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Clock out for a break

I work as a nurse in an inpatient drug/alcohol rehab. Is it legal for them to force us to clock out for a break without a break?

i am a nurse at this drug/alcohol Tx. Center in Malibu. When on shift, the nurse deals with 64 clients to one nurse. The company faults up if we do not clock out for a break, but none of us nurses get breaks. The Co. For sea us to clock out in for a 30 minute break that we can't take. There is simply way too many clients and too much to do. We (nurses have asked for a second nurse to be on shift, at least at med prep and med administration. I seriously pre pack and give up to 5 mess for about 50 clients, plus all the unforeseen things that come up with this population from emotional drama to wounds from different activities, etc. I am currently on medical leave for burnout and exhaustion because I have not had a real break for months. My co-workers have asked me to get a lawyer to "save us

Nathan’s Answer

In a class action lawsuit, Gerard v. Orange Coast Memorial Medical Center, a month or so ago, the California Court of Appeals invalidated a wage order to the extent it allows healthcare employees to waive one of the meal breaks on shifts longer than 8 hours as required by the Labor Code. Normally, Labor Code section 512 forces employers to provide employees with 2 meal periods for work shifts lasting longer than 12 hours. But the Industrial Welfare Commission wage order authorizes employees in the healthcare industry to waive one of the two required meal periods on shifts longer than 8 hours. This was struck down showing an intent by the judiciary to protect healthcare workers from abusive tactics that reduce break time for healthcare workers in favor of these hospitals.

Here, forcing you to clock out, but forcing you to continue work, is not even allowing you to take one break depending on how long your shifts are. You need to speak to counsel immediately.

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Medical records

Is it legal for my university to ask for a release of information and full access to my medical records?

I am a student at a large university. I received notice that I am on suspension and the university has requested full access to my medical records. This request comes the day after they asked for a note saying I am healthy to work. I have a chronic condition which does not cause me issues and I have no special requirements/adjustments that I need, I work full time and attend school. The university has been unable to answer my questions regarding the need for access to my medical records. I am wondering if this is legal?

Nathan’s Answer

Medical record confidentiality can be waived by the holder. If you are on suspension, you likely have the right to an administrative hearing. Does the handbook for the university address such a hearing? You may need counsel's support - the standard for such hearings is much more informal than in court and whatever happens next can have long term effects that echo throughout your lifetime. Invest the call in counsel.

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Stipulated settlement

Does the board of Registered Nursing give stipulated settlement before or after looking at the mitigation?

As I received statement of issues from the board, in which it said stipulated settlement may be possible. Also the board is allowing me to take the NCLEX in the meantime. My attorney told me that the Board will not give me the settlement, but when I talked to the AG, she said that i will have to turn in the mitigation for them to consider the settlement route. That is why I am wondering, if the board can adopt the no settlement policy without even considering the mitigation

Nathan’s Answer

I am concerned that you are relying on the AG to receive legal advice. I am also concerned that the AG is corresponding with you if you have counsel. It is critical to file a Notice of Defense if one has not been filed already. It is also critical to pow wow with experienced counsel, or your counsel if you have one at present, to figure out a strategy on how settlement, if that is in your best interest, should be addressed. Has your counsel explained "why" the Board will not give you settlement? Mitigation evidence if offered, should be presented in a legally compelling manner but you'll have to overcome the threshold question of why your counsel, if any, believes settlement is not forthcoming.

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Professional ethics

Re moral character determination in CA, it appears I may be invited to an informal hearing. Do I need to hire a CA lawyer now?

I submitted an application for determination of moral character in CA. I knew the only red flag in my file was poor credit and outstanding debt that was in some cases 5+ years old and charged off (including two civil judgments from creditors). My analyst corresponded with me asking for additional information regarding my outstanding debts and how I planned to address them. I was able to secure funds from a friend to resolve all outstanding debt and judgments. I disclosed the source of the funds and the promissory note to my State Bar analyst.

He recently responded back that even though resolving the debt was advantageous to my application, he could not clear me because the issue now was the fact that the debts existed at all and the long period of time they were outstanding.

Nathan’s Answer

Congratulations on passing the bar exam. This is and of itself demonstrates discipline and ability to handle your own affairs. Your debts indicate a different pattern or history however, and the State Bar is concerned that money troubles you had or continue to have would jeopardize your ability to for example, hold money in trust on behalf of a client. You will possibly be invited to hearing, where you may be allowed to move forward, or be held back - it is CRUCIAL you obtain counsel to advise you on how to handle yourself should you be invited to a Subcommittee hearing because you will be scrutinized VERY closely.

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