Thursday, May 23, 2019

Rules and Practices

In April 2019, the Florida Supreme Court issues its decision in In Re Dennis Daniel Bailey, SC18-2060. It it instructive and worth of discussion, though it is not about a workers' compensation trial, but a jury trial. 

The matter arose from a "side bar" conversation during a jury trial a year earlier. The "side bar" is a conversation between the presiding judge and the attorneys in the case, in which they gather at the bench and speak about something that the jury cannot hear. This is how small issues are resolved without the jury having to leave the courtroom. In the past it was held in hushed tones so that the jury members would not hear. More recently, courtrooms are equipped with "noise" machines that strive to mask those voices. Of course, the judge could always have the jury retire from the courtroom for arguments, but that is a time consuming process. During the course of trial these "side bar" arguments are reasonably common. 

In this instance, one party had two attorneys present. During the argument, "one of the attorneys tried to help his colleague articulate a point." The judge instructed that lawyer to stop, saying “one lawyer at a time,” “only one lawyer argues,” and “you have a hard time understanding me? Two lawyers can’t argue one argument.” From this recitation, it would appear possible that the second attorney attempted to interject more than once. When the attorney spoke again to apologize, the judge "ordered his courtroom deputy to . . . return this attorney to his table." The Court noted that "all of this was in full view and hearing of the jury.” 

That parties second attorney then asked for time to file a disqualification motion, which the judge allowed. When that was filed shortly thereafter, the judge "denied it as legally insufficient." The judge saw no reason to remove himself as he felt "he could be fair to the parties." He admitted he did not view the situation from the perspective of the defendant. 

When the ensuing complaint was investigated, the judge admitted "his conduct was not patient, dignified and courteous." He admitted that his behavior did not "promote confidence in the integrity and impartiality of the judiciary." He admitted that his actions did not "preserve the integrity and independence of the judiciary." The Court accepted those admissions and added that he should have granted the motion to disqualify. 

The Court quoted extensively from the report of the Judicial Qualifications Commission. First it noted its agreement that it is appropriate to "to place restrictions on the presentation of cases or arguments; such as a one-person-per-argument policy." The Commission noted, however, that any such rule "should not be enforced arbitrarily, and never under the threat of physical force." The physical force element, "in full view of the jury," was "egregious enough that it harmed the integrity of the judiciary." 

The Commission and the Court reminded that judges have a variety of tools available during proceedings. There is a tacit recognition that a judge must preserve order during proceedings. However, the Court specifically noted that the judge did not resort to any of the available tools before proceeding as he did. As an aside, contempt proceedings were mentioned by the report and the opinion. That is the one tool which workers' compensation judges do not have, but one which she or he might access as discussed below. The Court accepted the Commission recommendation in this case and will deliver a reprimand publicly at the Supreme Court. 

This reminds of several issues in the trial setting. First, there is a natural exuberance or eagerness to make one's point. Humans, for the most part, are willing and ready to explain what they think and why. Certainly, some are more reserved and shy; but, most are eager to say their piece. That is likely exacerbated by the fact that it takes time to get to trial. At least in part, the people at trial are there because they have not been able to reach their own resolution of the issues. There is disagreement and perhaps even frustration at the delay. And, they are all ready to be heard. 

In Florida workers' compensation proceedings, and in many other trial settings, microphones have become ubiquitous. They are recording everything. Lawyers recognize that there is purpose to that. The microphones are there to record the proceedings and thus make "a record" of what was or was not said. I find myself repeatedly reminding people in hearings (1) not to put things on top of microphones, (2) not to flip papers or books next to microphones, (3) not to mistakenly think they can have a brief private conversation with their client (microphones are very sensitive), and most of all (4) I can only listen to one person at a time and microphones may not produce clear recordings if everyone speaks at once. That last one is a good reason in any trial to observe the "one-at-a-time" rule, which is certainly different from the "one-person-per-argument policy." 

That said, there is no rule about who can or should speak when. That is the role of the judge. The judge should provide appropriate verbal cues for the attorneys in trial: "Ms. _____ call your first witness?" or "Mr. ______ are you ready to provide your opening statement?" When the judge is not anticipating your need or request, the way to interject depends on what is occurring at the time. To this point, there are rules and law in trial but there is also some nuance, some "art."

If someone else is speaking (lawyer or witness) when that need arises, then it is best to "object." Having said that word, or a concise combination beginning with that word, one should strive to make eye contact with the judge and await an invitation to proceed further. If it does not arrive, and one wishes to expound further, a "may I speak to that judge?" is a recommended follow-up. If this arises when someone is not already speaking, begin with the "judge, may I . . ." The scene is often important. One might gain great perspective from the appearance and posture of opponents or the judge. As an aside, that is one of the great disadvantages to telephonic appearance at hearings, depositions, and otherwise. The visual element is eliminated.

Should more than one lawyer speak to a particular issue? Should a judge enforce that objections may only be voiced by the attorney on each side that will question a particular witness? Should a judge interject to instruct attorneys in the course of trial? Those remain within the discretion of the trial judge. Though in a jury setting, it would be appropriate to do any instructing, reminding, or reinforcing privately either at side bar or with the jury retired to the jury room.

The Court was not critical of having process and procedure in the courtroom. The point may be that the trial judge should be clear about such process at the outset. If there is departure from any instruction, or if a judge elects to limit attorney participation even in the midst of trial, that should be communicated evenly, and calmly. It clearly should not ever involve "the threat of physical force" or any threat. Threats simply have no place in the trial process. A judge may have to remind participants of process, or rulings, and of enforcement, but should no more make threats than any of the other trial participants should. 

There are times when attorney exuberance and excitement may evolve to anger and even aggressiveness with a witness. That too is for the trial judge to control and ameliorate. I have witnessed some fine judges interrupt an attorney with a simple question, such as "excuse me Mr. _______, but how much longer will we require for this witness?" That innocuous pause in questioning may itself be sufficient to remind an attorney of appropriate demeanor. 

However, I have found that the very best answer to exuberance of witnesses or attorneys in that context is usually a short break. It is helpful for people to leave their seats, stretch, and get some water. In that brief pause, it is possible to also get back some perspective. A judge should strive to make that, a break, a "go-to" when she or he feels tempers rising, tension building, or frustration reaching a marked point. More than once, I have had an attorney return from such a break and pointedly express thanks, with a recognition to the effect of "it was becoming tense before that break." 

It is important that everyone remembers that trial is a stressful time. That this is true for witnesses and attorneys is perhaps obvious. But, it is true also for judges. Judges want to have effective proceedings. They want the recording equipment to be effective (and thus have to remind lawyers not to put files on the microphones, and to speak one at a time, etc.). They are responsible for a myriad of legal rulings, keeping the case on schedule, and enforcing order. In the OJCC, they are also monitoring the equipment that is recording the hearing, or operating the video-teleconference equipment. 

Attorneys should appreciate that judges, witnesses, and parties are under stress. Likewise, everyone should appreciate that lawyers are similarly under stress. Ultimately, it is the judge's role to remain calm, professional, and measured. If the judge remains calm and collected, that will encourage the same from others. 

Ultimately, the best rule of trial from any perspective, is fairly simple. If everyone involved treated everyone else with the dignity, decorum, and respect with which we would want to be treated, then troubles and tribulations would be minimal. Judges, lawyers, and others should simply strive to treat others as we wish to be treated. It sounds simple. Perhaps it even sounds trite. But, it is sound advice. The judge disciplined in this case would not have wanted security to "return (him) to his table." And thus, the judge should not have exercised that option as regards someone else.

Finally, it bears noting that this judge erred in denying the motion for disqualification. The point is not whether the judge believes the asserted grounds for disqualification or believes he or she can nonetheless be fair. The point is whether the motion, on its face, is timely and legally sufficient. The truth of what is alleged in such a motion is not for the trial judge to determine. The trial judge accepts the allegations and determines if they are legally sufficient, and promptly addresses the motion. There is some exception to that if a previous disqualification has occurred in the case, that is if the trial judge is a "successor judge." See Fla.R.Jud.Admin., Rule 2.330(f) and (g).

Thus, Bailey is instructive and provides reminders for judges and lawyers alike. Ultimately, treat others as you would like to be treated and the process of litigation and trial should remain reasonably smooth and productive for the resolution of your disputes.

Tuesday, May 21, 2019

The Striking of an EMA

In April 2019, the Florida First District Court of Appeal decided Falk v. Harris Corp., -- So. 3d --, 1D18-2176 (Fla 1st DCA 2019). The case is relevant as it perhaps answers a question that many have asked. 

Several years ago, I was presented with a Motion to Disqualify Expert Medical Advisor (EMA). There had been a motion to appoint EMA; the EMA was not appointed of the Judge's own motion. The injured worker had been evaluated and a report issued. The injured worker then moved to disqualify the provider making various allegations about the evaluation process. There was also a complaint filed by the worker against the doctor with licensing authorities as I recall. 

The injured worker thus sought the removal of that physician from the case and the appointment of a different EMA provider. The worker raised allegations and accusations based upon her perceptions of the physician, and asserted that she lacked both faith and trust in that provider. The employer/carrier insisted that this Office lacked jurisdiction or authority to appoint another EMA, and in that process to effectively disregard the opinions of the initially appointed EMA. 

The employer/carrier argued that the statute, section 440.13(9) requires that when a conflict is presented the appointment of an EMA is mandatory. Furthermore, it asserted that the report of an EMA shall be received in evidence. Section 440.25(4)(d). Furthermore, the opinions of the EMA are 
"presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims." section 440.13(9)(c). 
On this path of logic, the employer argued that once appointed the authority of a particular physician remained inviolate. 

The injured worker argued that the EMA was judicially appointed and essentially that physician became "judge like" upon appointment. This argument was based upon the presumptive correctness of the EMA physician opinion. The worker argued that the EMA effectively became the judge regarding medical issues. Therefore, the worker argued, the EMA could be disqualified pursuant to Rule of Judicial Administration just as a judge might be. See Rule 60Q-6.126. I rejected that argument, concluding that while the EMA opinion is presumptively correct, that does not render the physician judicial or even quasi-judicial. 

However, I concluded that the authority of a particular EMA in a particular case is the result of this Office making an appointment pursuant to the statute. In concluding that this Office necessarily remains engaged in the EMA process, I noted that after an appointment of an EMA there could be a variety of instances which might necessitate the appointment of an alternative EMA provider. 

As examples, I cited that following such an appointment, the EMA is required to complete a certification of "no conflict." That essentially requires that the physician assure all parties that she or he is not disqualified from participating in that particular case. If the medical issue involves some drug, device, or modality, it is possible that the physician could have prior involvements advocating or experimenting with such that could lead the physician to conclude she or he has a conflict of interest. 

Alternatively, it is possible that the physician might discover that she or he had been previously consulted in the case, unbeknownst to the parties. A treating physician might have called upon the EMA physician for advice. The insurance company or its attorney might have consulted with the EMA physician for advice. The physician is obligated to consider the implications of an appointment, and certify the absence of conflict of interest. If the doctor does not, then it is only logical that physician is not the EMA, despite the order appointing her or him. 

Similarly, it is possible that prior to trial the appointed EMA might fall ill or even pass. A foundational part of our litigation system is the Constitution's recognition of the right to due process. That right includes the ability in many instances to confront witnesses, the process of cross-examination. It is often through just that process that a party may seek to establish the very "clear and convincing" evidence that might convince the trial judge to disregard the EMA conclusions despite the statutory presumption of their correctness. 

If an EMA were to become incapacitated during the EMA process, prior to the parties' opportunity to take the provider's deposition and thus confront the conclusions, then it might be appropriate to appoint some other EMA provider. However, the right to cross-examination is not absolute and such a development might not necessarily require disqualification. That is an intriguing point. See IMR and Due Process

To conclude an EMA could not be dismissed, I found, might be to accept an absurd result: the appointment of the EMA is mandatory, but the incapacity of the EMA devolves the conflict back to the trial judge for medical determinations as there is no stated statutory authority for appointing a second (substitute) EMA. Or, if the incapacity is not permanent, the disability of the EMA provider and resulting unavailability for deposition, report preparation, or even examination might result in delay of deciding the case. If that delay were too extensive, it too might implicate due process and other statutory demands. 

Thus, we return to the recent appellate decision. In Falk, the Court concluded that the expert medical advisor did not render an opinion regarding the medical questions asked. The Court noted that the worker had been evaluated by three neurologists. The judge appointed an EMA neurosurgeon in the case. The EMA, according to the Court "offered no independent opinion regarding the head injuries." Furthermore, the neurosurgeon EMA did not conclude "that Dr. Tatum’s (one of the neurologists) opinion was correct." Instead, the EMA "simply deferred to Dr. Tatum." Thus, the EMA did not fulfill the role of EMA. The Court concluded "a blanket deference is not an EMA opinion." 

The Court did not instruct the trial judge on remand, to provide the EMA physician with instruction or to request clarification of the EMA's opinions. The Court instead concluded that "the JCC should have stricken him as the EMA and appointed another." The statutory authority to strike an EMA is not clear. As discussed above, there have been instances in which litigation over such an action have ensued. But, the authority to strike an EMA is now clear, from Falk, that not only does a JCC have the authority to appoint a new EMA the judge is obligated to do so. 

The facts of Falk might be worthy of consideration. Did the EMA render opinions and deference only in the EMA report, or was there testimony? This might be pertinent in the decision of whether to seek to strike an EMA. If an EMA report is not sufficiently conclusive or is a "blanket deference," is a motion to strike immediately appropriate? Or, would the parties be obligated to explore those opinions through the testimony process in a search for clarification or explanation before moving to strike? 

There may also be those who will see the absolute of Falk, "blanket deference" and question whether the EMA physician is similarly subject to being stricken if there is deference of any degree whatever. They may ask what extent of deference is appropriate, if any. May an EMA defer in any event, to any degree? To one of the doctors involved in the conflicting opinions, or to a neurologist that interpreted an MRI, or to a pathologist that examined a biopsy? If the EMA may defer to some extent, but not adopt a "blanket deference," then there may be factual disputes as to whether any particular EMA's deference was or was not too extensive. That might need the interaction of a deposition to define and describe. 

Ultimately, however, Falk answers one question clearly. The EMA appointment of the OJCC is not an absolute. The provider is empowered by the authority of this Office and remains subject to it. Thus, the trial judge is empowered in the right circumstances to strike an EMA after appointment and even after rendition of opinions. While the statute is less than clear on this, the outcome is logical and consistent with the purpose of the EMA statute, and the due process concerns inherent generally to litigation.

Sunday, May 19, 2019

Lawyer Threatening Criminal Charges

In March 2019, the Florida Supreme Court rendered The Florida Bar v. Vujin, No. SC17-1949. There, the Court accepted the findings of the referee, but declined to adopt the recommended sanction. Instead, the Court permanently disbarred the attorney. The case is worthy of consideration on two points. 

As a matter of foundation, when there is a complaint regarding a member of The Florida Bar, a decision may be made to conduct a proceeding. In those instances, a “referee,” a constitutional judge, is appointed to conduct proceedings, determine the facts of the allegation(s) and defense(s), to draw conclusions regarding the application of Bar rules, and to make recommendations regarding disposition. 

The complaint resulted from a civil lawsuit in which the attorneys apparently had discussions regarding settlement or compromise. Mr. Vujin sent correspondence by mail and email demanding “$9000.00 Plus Attomey's Fees within seven days, $13,000.00 Total,” from Mr. Touil. And, such demands are mailed all day every day in a variety of disputes (some of which are actively litigated and others that are not). 

This compromise demand included more, however. It “presented threats of criminal charges in order to obtain an advantage” in compromising the “civil dispute.” Essentially, the “letter discussed several alleged criminal statutes,” and stated that Mr. Touil (the defendant) would "most likely face deportation for your obvious commission of several aggravated felonies." 

The letter made clear that unless the case was resolved, compromised for the $13,000, that “my clients will have no other choice but to report you to the authorities and take you to Court.” The letter closed with a “final threat”: "Your failure to comply with the law in this matter will have disastrous, irreparable consequences in one week." So, a threat and a deadline. 

The attorney’s defense against the Bar complaint was essentially that only if the “sole intent is to gain an advantage in a civil proceeding,” (emphasis added) is such a communication forbidden. Also, because the lawyer believed that his “clients never contemplated a civil resolution here," then the Bar rule was not applicable and his statements not actionable. He seems to believe that the rule become effective only after a civil proceeding is filed, or subjectively is contemplated. The referee was unpersuaded. 

The referee concluded that the attorney had violated Rule 4-3.4(g)(“A lawyer must not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”) After review of various authorities, and the presence of a “prior disciplinary history” of this attorney, the referee concluded that the attorney “is either not willing or not capable of conducting himself in a professional manner.” That, the referee said posed “a threat to the public and/or the legal system.” 

An interesting aside is the referee's description of multiple “aggravating factors” including past behavior, pattern of conduct, and motive. Of particular note was the lawyer “failing to acknowledge the wrongfulness of the conduct.” And, in seeking to delay the proceedings, the attorney "in his untimely motion, . . . continues the same pattern of scandalous, outrageous, and unfounded attacks on his prior counsel, opposing parties, and opposing counsel,” that had been noted by the referee in a previous disciplinary case involving the attorney. 

Upon receipt of the report, the Supreme Court of Florida (SCOF) issued an order to show cause (an opportunity for the attorney to address the referee's conclusions). The attorney elected not to respond to that order. Then on March 22, 2019, the Court “approve(d) the referee’s findings of fact and recommendations as to guilt.” Instead of suspending the attorney immediately, pending consideration of the recommendation of disbarment, the unanimous Court disbarred the attorney permanently and ordered the attorney to reimburse The Florida Bar for the cost of the proceedings. 

The case reminded me of a presentation I observed some years ago at an Inns of Court meeting. There was discussion of making threats of criminal prosecution in order to encourage settlement of a case. I was surprised then that several seasoned attorneys expressed surprise that the Rules Regulating The Florida Bar preclude such threats. There was discussion among attendees about innuendo and discussion to suggest such potentials without making threats. I was disappointed in the seeming acquiescence of those attorneys regarding this patently inappropriate behavior. 

I was also reminded of the news coverage that has recently brought to light allegations of immigration law becoming implicated in workers’ compensation matters. That is discussed in Criticism of Enforcing the Law, The Forgotten 2014 Supreme Court Workers' Compensation Case, and Kansas Cannot Prosecute Identity Theft.

Why is Vujin worthy of consideration? First because every lawyer should know that it is inappropriate to threaten criminal action for the purpose of obtaining advantage in a civil matter. This is true whether the civil matter has been filed, is imminent, or even if it is merely seen by the Court as a probable outcome if discussions fail. The standard is not "solely," and there is no "bright line" that allows such behavior to some point, and then forbids it once a lawsuit is filed. It would appear that workers' compensation cases are a "civil matter," though some appellate decisions have case doubt upon that, particularly in the application of the Supreme Court's Uniform Guidelines for Taxation of Costs. 

The second point is perhaps more elementary. In Vujin, the SCOF was provided a report that recommended serious sanctions. The Court provided Mr. Vujin an opportunity to refute and dispute, the Order to Show Cause. Instead of making a case for leniency, instead of expressing acknowledgement and regret, he elected not to respond. He elected not to "show cause." Certainly, it is possible that a response would not have been efficacious. But, when an adjudicatory body, be it judge or court, affords someone the opportunity to speak, to explain, to seek accommodation, it is highly recommended that the person respond. 

Lawyers can benefit from reading Vujin. However, it is probable that the benefits of understanding the preclusion of lawyers engaging in such threats would be of some benefit to a few litigants that are not lawyers. Those clients might be benefited by knowing of the constraints of professionalism and prohibitions under which attorneys must practice. Those clients might benefit from understanding that, despite their own desires, there are things lawyers cannot, and should not, do. 

Thursday, May 16, 2019

Inadvertently Creating Delay and Making Work

Technology is a boon. Too many reading this will have lived their entire life in a world in which word processing is ubiquitous. A fair few may well struggle to remember a time when we did not complacently carry around super-computers in our pockets and remained connected to the world wide web incessantly. But, a handful may remember the old typewriter, the Dictaphone, and even the fax machine. Perhaps those were the "good old days?" These machines and technologies make our communication efforts easier, quicker, and we leverage this to our advantage. 

With technology comes great power, the advantage. But with that power comes responsibility. With the benefits of technology comes our tendency to rely upon technology. There is an advertisement tag line that seems old hat: "what happens in Vegas stays in Vegas." That was coined in 2003, and has since become part of our culture. The tag line has inspired imitators, one noting that what happens on social media stays on Google forever." The point being that technology may inspire and enable us, but it may also memorialize what we do, keep records perpetually, even of our mistakes.

Yes, we also make errors, that is human nature. And just as these technologies allow us to communicate more rapidly and inexpensively, there is a downside when we make mistakes. Mitch Ratcliffe famously said:
“A computer lets you make more mistakes faster than any other human invention in history...with the possible exception of handguns and tequila.” 
That same speed and efficiency that benefits us can likewise burden us when we make errors. Our efforts are magnified and broadcast so effortlessly and efficiently, but so are our mistakes. 

This came back to me recently when reviewing a series of pleadings and orders in a case. An attorney filed a petition on behalf of an injured worker. It named the employer as "ABC Corp." (note, the names have been altered), and the carrier as XYZ Insurance. Within a few days, XYZ filed a response to petition explaining that XYZ was not responsible, and indicating that PDQ is instead. The response asked "please remove XYZ and amend filings to reflect PDQ only." The attorney did not file any response. 

A week after that response was filed, the claimant's attorney filed a second petition. This one also named ABC and XYZ. Whether the response had gone unread, or whether there is a reason for continuing to pursue XYZ is not known. Certainly, there may be good reason for a party to disagree with the position taken by some other party. 

About three weeks after that initial petition, just days after the second petition, the Employer/Carrier (ABC/XYZ) filed a "motion to correct employer/carrier." This explained that an employee leasing company "leases employees to ABC" and thus this leasing company, QWE, is the appropriate employer. Furthermore, the motion says, JKL is the carrier for QWE. There may be redemption seen there. The first response said "not ABC/XYZ, but PDQ"; the motion said essentially "not ABC/XYZ but QWE/JKL." 

The motion reflects that the two attorneys had discussed this situation (which is appropriate, see Rule 60Q6.115(2)("the movant has personally conferred or has used good-faith efforts to confer with all other parties"). The motion states that the two attorneys agree to this change, "claimant does not object to this motion." An order was entered the next day. 

The order is lamentable. Instead of drafting a simple order on the issue, the assigned judge attempted to add information to what is apparently was a proposed order submitted by the Employer/Carrier. Of course, the rules forbid filing such proposed rules. Rule 60Q-6.103 ("proposed orders shall not be submitted unless requested by the judge."). However, many lawyers refuse to follow the rule. That order was served on the parties, as reflected in the OJCC database. And, to reiterate that it was served, the judge's staff signed a superfluous certificate on the document before sending it. 

Thus, the problem was seemingly solved. 

A week later, the claimant's attorney filed a third petition. In this one, the employer was named as "ABC Corp." and the carrier as "XYZ" (remember XYZ? the one that has been trying to alert everyone it has been named in error, an error that apparently everyone in the case agrees). At this point, there is perhaps no longer a suspicion that "there is a reason for continuing to pursue XYZ." The claimant's attorney had just days before agreed that XYZ be removed from the case.

This third petition added ABC and XYZ back to the case in the OJCC database. After the effort of an informative response to the first petition that was apparently overlooked or ignored, after the time and expense of a motion to correct, after the good faith consultation for the motion certification, after the entry of the cobbled together order, the parties were right back where the case started, by the filing of this third petition. 

Thus, two weeks after the judge's order correcting the employer/carrier to QWE/JKL, a second motion is filed to "correct the employer/carrier." This one was also accompanied by a proposed order titled "Order on Motion to Motion to Correct Employer/Carrier." (Sic). That proposed order was typed upon, entered, and essentially ordered the parties to pay attention to the order entered two weeks before and to "correct the employer and carrier." That is frustrating. An order that essentially says "read the last order."

The situation is a great illustration of the perils of technology. It is likely that the claimant's attorney is not intentionally reiterating error. It is more likely that a computer in either some form or database is saving information. We know that the OJCC database, in the e-JCC function saves the name of the employer and carrier as the initial filing (a petition or a request for assignment of case number) presents it. 

When corrections are made in the OJCC database, that will affect the information in orders generated by this office (but not the ones submitted by attorneys in violation of the 60Q rules, see Rule 60Q6.103(4)("proposed orders shall not be submitted unless requested by the judge"). But, when a party selects the e-JCC function to file a "subsequent petition," that form will populate with that data that was submitted with the first petition. For now, "what happens in eJCC stays in eJCC forever." The attorney has to remain aware of changes, has to pay attention to the data the form prompts, and has to make corrections to that data where appropriate. 

Each time this attorney uses e-JCC to file a petition, the form will suggest ABC and XYZ. The computer will prompt the same data every time. It is up to the attorney to (1) know this, (2) pay attention to any changes that occur, and (3) correct the petition she or he is going to file. The attorney is expected to read and verify that what she or he is filing is correct. Certainly, the computer database might as conveniently instead pull data that has been corrected, and ignore the old ABC and XYZ. That is a software remedy that the OJCC is working on (maybe the program can be made more assistive). But, ultimately, no matter what the computer programs do for us or to us, it is our responsibility as attorneys to verify the accuracy and completeness of what we are filing. 

Certainly, we all make mistakes. The point of this post is not to suggest otherwise, or to single out any particular attorney (the names have been changed to protect the innocent). The point of this post is to assist with "(1) know this." If you file petitions, then know this. If you defend petitions, then know this. And, if you find yourself in the process of changing the employer/carrier in a case, remember this and the obligation to review your work to assure that subsequent filings are accurate and complete. 

Technology helps us, but it is fallible as are we all. It empowers us to do so much, and to do it so much faster than we could in the dark ages (back in the 1980s). But it is a tool for us, not a substitute for us. We have to engage ourselves, verify information ourselves, and correct the errors that machines and software makes. The attorney has to check her or his own work to prevent such errors. When we do not, it will cost everyone time and money that could be productively be put to work elsewhere.

Tuesday, May 14, 2019

Express and Direct Conflict

On April 18, 2019 the Supreme Court of Florida (SCOF) released an order in Glass v. Nationstar Mortgage, No. SC17-1387. This order superceded a decision rendered by the Court on January 4, 2019

The SCOF in April granted a motion by the Respondent to recall the mandate, withdrew the opinion of January 4, 2019, and concluded that "jurisdiction was improvidently granted." The case had come to the SCOF based upon the decision of the Fourth District Court of Appeal: Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA - 2 - 2017). 

The Petitioner, Glass, had asserted that district court decision was in  direct conflict with the decision of the First District Court of Appeal in Bank of New York v. Williams, 979 So. 2d 347 (Fla. 1st DCA 2008). Upon accepting that premise, the existence of conflict, the Supreme Court undertook review and issued the January decision. The January decision quashed the decision by the Fourth District Court. 

As a side note, the "conflict" jurisdiction of the SCOF exists because any decision of a District Court of Appeal is "controlling" in the geographic area served by that Court. Outside of that geographic area, such a decision is "persuasive," meaning it is given some degree of deference, but is not controlling. Thus, it is possible that two District Courts may disagree about what the law says. The law might be different in two cases because of where in the state those cases occur. So, the SCOF has the authority to hear  and resolve such conflicts and thus bring uniformity across the state. 

The Glass case began when a lender filed suit to "foreclose a mortgage on real property." After multiple amendments to that suit, prompted by Glass' motions to dismiss, the trial court in 2015 dismissed Nationstar's suit with prejudice. Thereupon, Glass sought attorney's fees from Nationstar related to her defense of the lawsuit. Nationstar appealed the dismissal to the Fourth District. 

In 2017, "after briefing" (that is after the parties had written their arguments and legal citations and submitted them to the court), Nationstar dismissed its appeal. Glass then filed a motion seeking appellate attorney fees. Glass asserted that she was the "prevailing party" on the appeal. The Fourth District denied that motion. Glass asked for rehearing en banc (heard by the whole court as opposed to a three-judge panel), which the Court granted. Thereafter, it "issued a nearly identical opinion on rehearing en banc." Therefore, Glass sought review of the Supreme Court. 

The original Supreme Court analysis notes "mischaracterization of the procedural history of this case by the district court." The Supreme Court quoted the District Court opinion, in which there were conclusions regarding arguments raised by Glass in the trial court. There, Glass alleged that Nationstar lacked "standing," in other words the right to bring the suit. The SCOF concluded that the Fourth District had decided that entitlement to attorney fees was dependent upon "reciprocity provision of section 57.105(7)." Since Nationstar lacked standing, it was not entitled to enforce the contract under consideration, and thus the "reciprocity" was not present. 

However, the SCOF noted that "Nationstar did not seek review of the attorney's fees order in the district court." The appeal was about the dismissal of the underlying lawsuit by the trial court. The SCOF concluded that this distinction was critical. It directed attention instead to the dismissal of the appeal, and the "prevailing party" statute. The SCOF also iterated three additional allegations Glass made in support of dismissal by the trial court, in addition to the standing issue. 

The SCOF restated that "when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party." Citing Thornber v. City of Ft. Walton Beach, 568 so. 2d 914 (Fla. 1990), and a prior decision by the Fourth District (omitted). The SCOF noted precedent supporting the award of prevailing party fees under statute and under a contract provision, even if the contract is rescinded or unenforceable. 

Justice Polston dissented from the original SCOF decision, joined by Justices Canady and Lawson. The dissent concludes that there is no express and direct conflict between Glass and Williams. It explains that statute sets two requirements. The Fourth District addressed the "second requirement," whereas the purportedly conflicting analysis in Williams instead "only addressed the first requirement" of that statute. 

The Glass case is pertinent for several reasons. First, the Florida First District Court has concluded that section 57.105 is not applicable to workers' compensation proceedings. See Lane v. Workforce Business Services, Inc., 151 So. 3d 537 (Fla. 1st DCA 2014). In reaching that conclusion, the Court noted that Chapter 440 does not incorporate that statute. Rather, 
"The essentially self-contained workers' compensation law in chapter 440 already provides a host of specific sanctions and remedies which includes attorney's fees for frivolous claims and defenses under section 440.32, Florida Statutes (2011)."
That distinction may be worthy of consideration by parties that have perceptions of the validity of either claims or defenses in Florida workers' compensation proceedings. 

Second, The SCOF ultimate decision states that its jurisdiction is dependent upon "express and direct conflict." That is a significant burden for any party to demonstrate, while seeking Supreme Court review. In another conflict case, a workers' compensation proceeding several years ago, the issue of conflict was similarly raised. In Sanders v. City of Orlando, 997 So. 2d 1089 (Fla. 2008), the underlying case involved both present claims and an effort to set-aside a prior settlement in another claim involving the same worker. The trial judge set-aside the settlement. 

The employer/carrier, Orlando, contended that the 2001 amendments to Chapter 440 "divested the JCC of the authority to vacate or set-aside" a settlement. The Florida First District Court of Appeal agreed and reversed the trial judge. The SCOF accepted jurisdiction concluding that decision was "in express and direct conflicts with multiple decisions of all the district courts," (citing decisions of the Second District and Fourth District). The SCOF reversed the First District. 

In Sanders, Justice Cantero dissented. He explained that the cases cited from the Second and Fourth District did "not interpret the particular subsection of the statute at issue here." He contended that therefore there was no "express and direct" conflict and therefore there was not jurisdiction. Some might argue that analysis in Sanders perhaps foreshadowed the decision in Glass. That is, a very focused and strict interpretation of conflict.

Glass is worthy of consideration as regards workers' compensation. Statutorily all appeals regarding decisions of Florida's Judges of Compensation Claims are vested in the First District Court. Section 440.271, Fla. Stat. Though the SCOF found conflict in Sanders, in two other Districts, it is perhaps less likely that the Court would so conclude today. The Glass analysis of jurisdiction may suggest that SCOF review of workers' compensation cases is less likely on "conflict" grounds. 

Sunday, May 12, 2019

Mesothelioma and Asbestos in the News

In 2018, I penned Territorial Jurisdiction in Workers' Compensation. The litigation mentioned there involved a cancerous condition called Mesothelioma. That post included a link to the Mayo Clinic as a reference regarding the disease. It was suggested by a reader that this reference was not sufficient to illuminate the disease process or substances to which it is linked. It is also possible that some readers remain unaware of the prevalence of Mesothelioma. In responding to the reader, perhaps the following provides greater edification. 
"six minerals that occur naturally in the environment as bundles of fibers that can be separated into thin, durable threads for use in commercial and industrial applications. These fibers are resistant to heat, fire, and chemicals and do not conduct electricity." 
According to the Mayo Clinic, Mesothelioma "is a type of cancer that occurs in the thin layer of tissue that covers the majority of your internal organs." There is a significant volume of information on the Internet regarding both Mesothelioma and asbestos. A search for "diseases linked to asbestos" will yield many websites, a number of them being associated with law firms. Persistence will eventually lead to an informative government website for the National Cancer Institute

That site provides insight on topics such as "what is asbestos," "how is asbestos used," "what are the health hazards of exposure," and "how can workers protect themselves." There is not, however, any real focus upon non-occupational concerns with asbestos. That topic may be worthy of mention before proceeding with the occupational concerns and broader concerns. 

In April 2019, the Environmental Protection Agency (EPA) announced a "nearly complete ban on asbestos," according to CNN. There has been "a decades-old partial ban," but its use remains in some "industrial processes or included in products." The article cites its use in "filtering chemicals and in some vehicle brakes." 

The broader applications of building materials and insulation were previously discontinued with the partial ban. The continued use was said to be allowed by "a very dangerous loophole." The EPA has opined that it lacks authority for a complete and outright ban on the substance. CNN emphasizes dangers from the substance. It says that "It has been linked to Mesothelioma, which causes about 3,000 deaths annually." MSN noted that some are critical of the EPA recent action, suggesting it could instead reintroduce asbestos. There is significant discussion in the press regarding the recent EPA action. 

Exposure to asbestos is obviously possible outside of the workplace. There have been reports of asbestos found in cosmetics, concerns of contamination in talc powders, and even crayons. Whether those products, or any products, facilitate any health risk is not clear. Thus, however, there appears to be some potential for exposure outside of the industrial or work setting. But, The National Cancer Institute says "people who become ill from asbestos are usually those who are exposed to it on a regular basis, most often in a job where they work directly with the material." It may exist in our environments, and it may be dangerous, but the highest risk is for those who work with it. 

The National Cancer Institute says that "asbestos" refers to: 
"six minerals that occur naturally in the environment as bundles of fibers that can be separated into thin, durable threads for use in commercial and industrial applications. These fibers are resistant to heat, fire, and chemicals and do not conduct electricity." 
The National Cancer Institute says "people may be exposed to asbestos in their workplace, their communities, or their homes." It notes that Mesothelioma is "rare," but is "the most common form of cancer associated with asbestos exposure." It notes that "there is limited evidence" for exposure to cause other cancers. But, it is linked with other health risks that include:
"asbestosis (an inflammatory condition affecting the lungs that can cause shortness of breath, coughing, and permanent lung damage) and other nonmalignant lung and pleural disorders, including pleural plaques (changes in the membranes surrounding the lung), pleural thickening, and benign pleural effusions (abnormal collections of fluid between the thin layers of tissue lining the lungs and the wall of the chest cavity)." 
As to protecting oneself from asbestos, the National Cancer Institute encourages the worker's use of "all protective equipment provided by their employers," and compliance with "recommended workplace practices and safety procedures." These are provided by the "National Institute for Occupational Safety and Health (NIOSH)," and include "respirators that fit properly," to minimize inhalation of the substance. 

Therefore, is is clear that the substance remains in our lives. Clearly, there is health risk associated with certain exposures. The questions that remain are whether an outright ban on the production or importation will ever come, and if so whether that will require further legislation to support the EPA authority. Furthermore, will the latest EPA changes this year have a significant impact on the production or use of asbestos, either in increasing or decreasing its presence in our lives?

Thursday, May 9, 2019

Delegation and Fee Schedules

There has been a fair amount of discussion about delegation in workers' compensation in recent years. Now come questions and considerations of states delegating authority to the federal government. This is a somewhat unique and therefore interesting perspective on the delegation question. With the changes to Medicare reimbursement, will there be delegation challenges?

Until now, the discussion and litigation context has largely regarded the use of the American Medical Association guides to Permanent Impairment ("the Guides"). It was first addressed here in 2015 in As Florida Waits. After that analysis of the Pennsylvania Appellate Court decision, the subject was revisited following the Pennsylvania Supreme Court decision in 2017 in Pennsylvania High Court Magnifies Protz. Most involved in workers' compensation are familiar now with the Protz litigation and the interesting analysis of delegation. 

Both of those posts provide far more detail regarding these two decisions. But, in a nutshell, the courts concluded that the state may certainly delegate its regulatory authority. By adopting a set of guidelines like the Guides, the state is relying upon work done by some outside, non-governmental, agency or person. The Protz decisions do not cast doubt on that process. However, that adoption must be of some work that is complete at the time of the state's adoption. 

In Pennsylvania, the legislature sought to avoid the necessity of periodically re-addressing the issue of adopting Guides, a medical impairment authority produced by someone other than the state itself. It therefore legislatively adopted "the most current edition" of the Guides. Thus, as this outside agency (the AMA) made changes in its perceptions and conclusions regarding impairment, those changes would automatically become effective in Pennsylvania. The Pennsylvania courts concluded that such a statutory adoption of something not as yet existing (a future amendment) was inappropriate and unconstitutional. That was delegating the process of updating or revising to the AMA. 

There are a number of potential impacts of such an analysis in workers' compensation, in addition to the obvious example of impairment guidelines. In recent years, state have similarly adopted tools such as pharmacy formularies and treatment guidelines. It is possible that such adoptions may later undergo amendment or revision and thus require re-adoption in order to effectuate changes. The potential for a challenge is perhaps evident from the prevalence of these adoptions. 

Various states have treatment guidelines. Reportedly 23 states have done so. The following is a sampling: Arizona, California, Colorado, Montana, New York, Washington, and Wyoming. Some states have adopted the Official Disability Guidelines (referred to as "the ODG") and others the American College of Occupational and Enviromental Medicine (referred to as "ACOEM"). Some states have declined to adopt either of these products and have instead adopted treatment guidelines internally. See Louisiana's Medical Claim Process Upheld. According to a study from WCRI, and reported by Business Insurance, there are "vast differences in state's workers' compensation treatment guidelines." 

Various states have also adopted pharmacy formularies. The Injured Worker Pharmacy noted these were "a growing trend in workers' compensation" back in 2016. Texas is seen as originating this concept of publishing a list of medications that are presumptively acceptable in workers' compensation, and by inference designating drugs that will instead require additional explanation or documentation for authorization. Since Texas began this experiment, Mitchell reports that "nine states have fully implemented drug formularies and three more have posted draft formulary rules." As with the treatment guidelines, it is practical to consider that some states may adopt a formulary process prepared by an outside agency or person. 

With this foundation, and an appreciation for the potential for delegation issues, we turn back to the idea of delegating to the federal government. Recently, WorkCompCentral reported that NCCI Foresees Impact of Changes to Medicare E/M Fee Schedule. These changes affect how Medicare will reimburse providers for medical care. Essentially, the examples cited by WorkCompCentral demonstrate simplification of office visit charges. There are currently 5 "levels of care" that a doctor might deliver in a clinical setting. Those are defined in terms of the doctor's interaction with the patient and the documentation required to support payment. 

In the changes Medicare is adopting for 2021, three intermediate levels of care, labelled "2, 3 and 4," which currently "would be paid . . . $45, $74 or $109, respectively, for an established patient" will be paid instead $90." Though there may be provisions that allow for additional charges specific to services provided in that visit, this is suggestive that at least in some instances doctors will be reimbursed less for medical services. Note that the example above does demonstrate some decrease in physician payment (level "4" decreasing from $109 to $90 means a $19 savings to the payer). However, some codes are similarly increasing (level "2" from $45 to $90 = $45 increase and level "3" from $74 to $90 = $16 increase). The change has potential to burden or benefit providers. 

The National Council on Compensation Insurance (NCCI) noted that "many states base their maximum allowable (workers' compensation) reimbursements, or MARs, for physician services on Medicare rates." Thus, as the federal government adjusts the amount it will reimburse for services, some state reimbursement manuals or regulations may likewise see a corresponding downward or upward affect. WorkCompCentral reports that "NCCI has estimated that the changes to the E/M fee schedule will increase workers’ comp physician costs by 1% to 4%, and overall medical costs will rise 0.5% to 1.5%." 

Some see parallels between the American Medical Association changing its Guides and the federal government changing its reimbursement schedule. They essentially see someone other than the state itself adjusting parameters, with an automatic actualization effected by the state law or regulation that has tied state workers' compensation reimbursement to this federal standard. Others will perhaps voice that this is distinct from the delegation analysis voiced by courts in instances like Protz. They will see distinction in the "outside agency" being the federal government. There is some tendency toward acceptance because: (1) it is the government, and (2) there is a primacy of federal law. 

The Florida workers' compensation statute has incorporated Medicare in some instances: "surgical procedures shall be increased to 140 percent of the reimbursement allowed by Medicare," section 440.13(12)(b)5; "reimbursement for a physician . . . 110 percent of the reimbursement allowed by Medicare," section 440.13(12)(b)4. Thus there is a potential for these changes to affect Florida workers compensation providers and payers. 

Back in 1972, Scott Camil was criminally charged with possessing Phenycylidine Hydrochloride ("PCP"). The Florida statute under which he was charged did not list PCP as prohibited, but incorporated "any other drug to which the drug abuse laws of the United States apply," an adoption of federal law. When the Florida statute was passed in 1967, the drug abuse laws of the United States also did not include PCP, but it was added by Congress in 1970. Thus, Mr. Camil was charged in 1972 under state law, by incorporating a federal definition that changed after the passage of the state law (and the arguable "adoption" by incorporation of the federal standards). Some will contend that "any other" language is a delegation to, or adoption of, a federal standard. 

Mr. Camil's case was decided by The Florida Supreme Court in State v. Camil, 279 So. 2d 832 (Fla. 1973). The Court concluded: 
"it would be improper to arbitrarily permit a substantive inclusion by reference into the reach of a Florida statute of a particular item embraced in a subsequently enacted or adopted federal law or federal administrative rule." 
The Court held: 
"It is reasonable that a new statute may be enacted by the Legislature incorporating by reference an existing Act of Congress, but it is contrary to the Constitution that a biennial revision of the statutes lacking title notice, etc., of the particular subject or thing to be incorporated have similar effect." 
The decision was not unanimous. Justice Boyd dissented, explaining that the legislative re-adoption of such a law should be presumed to have included an examination of "the list of drugs prohibited on the Federal roster and prohibited by Federal law." Upon that presumption, he concluded that the change in federal law was appropriately adopted and therefore applicable to Mr. Camil's case. See also Presbyterian Homes of Synod of Florida v. Wood, 297 So. 2d 556 (Fla. 1974). 

In 2011, the Florida First District Court of Appeal cited Camil regarding "prospectively incorporat(ing) by reference subsequently enacted federal law or" rules. The Court there held that "the OSHA standard in effect on the date the statute was enacted controls." Fossett v. Southeast Toyota Distributors, LLC, 60 So. 3d 1155 (Fla. 1st DCA 2011). It is possible that Florida's courts would view the Medicare schedule changes similarly. 

Thus, it is possible that the recently announced changes in Medicare reimbursement may affect workers' compensation providers and payers in Florida. What is persistent in general discussions of workers' compensation is that each state and territory has its own statutory system, and each is governed and influenced by particular state constitutions and precedent. 

Whether an affected medical provider or payer seeks to avoid the new Medicare allowance on this basis will be seen in time. But, whether such a challenge would be successful will be dependent upon individual state analysis and constraints. It is questions such as this that make workers' compensation intensely interesting and challenging.

Tuesday, May 7, 2019

The Burden of Proof Matters

One of the oft-repeated challenges of legal analysis is burdens of proof. The concept is confounding to many, sometimes even lawyers. In American litigation, much depends upon the burden of proof. Those who are familiar with the great American pastime, baseball, may be familiar with the oft-repeated "the tie goes to the runner." According to The Hardball Times, this is an "age old adage." Despite that "age old" status, there are those who find no support therefore in the actual rules of baseball. Others go so far as to label it a myth.

In 2007, the Florida First District explained the burden of proof in Mitchell v. XO Communications, 966 So. 2d 489 (Fla. 1st DCA 2007). There, the injured worker sought permanent total disability benefits. When he did not prevail at trial, he sought review by the Court. He asserted that the trial judge's conclusions were not supported by "competent substantial evidence." 

There are a number of "standards of review" that are employed by appellate courts. Three of them account for the vast majority of workers compensation cases. First, the court may question whether the trial judge abused discretion. Second, on questions of law, the court will interpret the law with no deference to the trial judge's conclusion; this is called de novo. Finally, as regards conclusions of fact (it did or did not happen, the worker is or is not employable, etc.), the court examines whether there is "competent substantial evidence" to support the trial judge's conclusions. 

In Mitchell, the Court noted that an injured worker "has the burden to prove entitlement to" benefits. To do so, the worker "must present evidence the JCC finds persuasive." The Court reminded that the trial judge, the JCC, "may reject in whole or in part even uncontroverted testimony" if it is disbelieved or not credible. This applies to factual or even to expert medical testimony. A JCC may disbelieve and reject even expert testimony, but is not empowered to "make medical findings which contradict undisputed medical testimony." That last is a distinction some may struggle with. 

The Court concluded Mr. Mitchell's arguments on appeal were not persuasive. It noted that Mr. Mitchell contended 
"that many of the JCC's findings regarding his ability to work, and the permanent impairment ratings (PIR) attributable to his compensable injury, are not supported by competent, substantial evidence." 
But, the Court explained: "a decision in favor of the party without the burden of proof is not required to be supported by competent, substantial evidence." 

Mr. Mitchell prevailed on the appeal nonetheless. The Court concluded that the JCC either rejected or misstated expert testimony in the trial order. Whether the judge rejected testimony was not clear. As a result of the lack of clarity in the order, the Court concluded that the order was "inconsistent in its findings of fact and conclusions of law. 

Those statements, or at least the specific statements recited by the Court, involved issues such as permanent impairment rating. The JCC both accepted experts' opinions on the subject and contradicted the experts' opinions elsewhere in the order. For that reason, the Court reversed for further proceedings. 

The decision, written by Judge Hawkes, provides insight into the challenge that comes with the burden of proof. A party with the burden of proof, to prevail, must demonstrate the necessary facts at trial. Those facts required by the law for an award of benefits must be supported by competent substantial evidence. However, a judge might conclude that the evidence submitted in that hope do not survive scrutiny or cross-examination. Thus, a claim could fail even if there is no substantive evidence to the contrary.

For example, a physician might render an opinion regarding an injured worker having reached maximum medical improvement. But, that physician's records, other testimony, or explanations under cross-examination might undermine her or his conclusions. It is also possible that the cross-examination might undermine the physician more broadly on subjects such as medical expertise (some opinion is not within her or his area of practice), diagnostic testing (a diagnosis made without some test she or he also testified is necessary for a conclusion), or otherwise. 

Upon return to the trial Judge in Mitchell, a new compensation order was entered. That too was appealed to the First District, and reviewed by a different panel of judges. There have been those who asked why such a subsequent review would not return to the same panel; essentially, the logic is for each new appeal to be assigned to a panel without reference to the case history. Judge Allen wrote the Court's second opinion in what was referred to as "Mitchell II."; Mitchell v. XO Communications, 3 So. 3d 1278 (Fla. 1st DCA 2009). The Court there concluded that the expert's opinions were "anything but unclear." And, in drafting the second order, "the JCC committed the same essential errors" as were illuminated in Mitchell I

The Court found it "confusing" that it was unable to locate in the record any "medical testimony" to support some of the JCC conclusions, which were also "at direct odds with" other conclusions of the JCC. The Court concluded that 
"the JCC's findings in the Mitchell I order and again in the order on remand are so conflicting and inconsistent as to make meaningful appellate review impossible." 
The Court recognized how rare it is "to remand the same issue to the same judge for a second time," but concluded that there was no other appropriate course. The Court ordered "the JCC to enter a new, internally consistent order containing her ultimate findings of fact and conclusions of law." The JCC thereafter entered a third compensation order, noting the "rather emphatic wording of the district court's decision." The Court did not disturb that third order. 

Thus, as to whether "the tie goes to the runner" in baseball we are no closer to the answer than we began. But, in legal proceedings the party with the burden must prove. That essentially means that a tie may well go to the party that does not have the burden. In other words, the tie may in fact go against the runner (the party that is striving to prove her or his case). The party without the burden might in fact prevail at trial without presenting any evidence. Despite this, I have suggested that bringing evidence is nonetheless the better course, see If you are not Perry Mason, Bring Evidence

As important from the long history of the Mitchell litigation is the Court's admonition that a judge's decisions must be clear and concise. The findings of fact, that is what the judge accepts as having actually occurred, should be clearly stated. Those conclusions (findings) should not be contradicted or treated inconsistently elsewhere in the order. Furthermore, when the Court reverses with specific instructions for reconsideration and clarity, the trial judge's responsibility and task are clear. An appellate court should never have to remand a matter twice for clear and consistent findings.

Sunday, May 5, 2019

Shifting Medical Preferences

Kaiser Health News recently reported that Millennials (born between 1981 and 1996, currently 23-38 years old) are engaging the health care market differently than other generations. This is a subset of various observations about that generation.

Millennials have different preferences. Business Insider reports that Millennials are less engaged in the real estate market; CNBC reports they are less interested in diamonds; the Los Angeles Times reports that their view on buying cars is different ("complicated views" and "fundamentally different"). Reportedly, in a variety of other ways this generation differs from their parents. NBC News has reported that this generation is also simply more inclined to save. 

In light of these many perceived differences, it is perhaps not surprising for the results of a Kaiser poll to support that this generation has different perceptions and engagement when it comes to medical care. The Baby-boom generation, and others before it, had embraced a medical model that was focused in some respects by the influence of a "primary care physician," or "family physician." This person was a starting point when illness or injury arose. Patients developed long-term relationships with providers. 

Some of the prior generations' adherence to that model may have been driven by the health insurance industry. It is perhaps important to remember that health insurance came to America in about 1847, according to There were plans that were involved with health care evolving during the Civil War, but the modern era began in the 1930s. And, there has been continued evolution over the last 90 years. Congress created Medicare in 1965. In 1973 a new model was created to challenge the typical indemnity health insurance policy model, it was called the health maintenance organization, or HMO. Some see the mandate of purchasing policies in Obamacare and the socialist campaign for Medicare for all as continuation of that evolution. 

Kaiser Health News notes, however, that there is a significant population of Millennials that do not "have a primary care doctor," and do not "want one." Instead, there is some trend toward the "urgent care" or "walk-in clinic" model. Some see that as a "more convenient" alternative, noting that there "services are rendered in a quick manner.” The preferences and perceptions of this market segment is potentially important as there are about "83 million Americans" in that Millennial generation. Kaiser concludes this is "the nation’s biggest generation." 

Kaiser notes that the marketplace is responding to those perceptions and preferences. Service providers are marketing "a fast-growing constellation of alternatives," which includes clinics in existing retail environments, "urgent care centers" and "online telemedicine sites." For convenience, there may be little that compares with "seeing" a physician or other provider over the Internet from the comfort of one's own home. A Kaiser poll concluded that: 
"45 percent of 18- to 29-year-olds had no primary care provider, compared with 28 percent of those 30 to 49, 18 percent of those 50 to 64 and 12 percent age 65 and older." 
Kaiser notes that other surveys recently have demonstrated significantly similar results. Of course, it is also possible that the tendency toward identifying someone as "your primary care provider" increases as we age. In a broad perspective, perhaps young people are generally ill less often and therefore more likely to seek health care in an on-demand paradigm? 

Telehealth is part of this perhaps. It is not a new topic, but this legislative session the Florida Legislature has been working on what it would mean here. House Bill 23 (HB23) in Florida involves tax credits, definitions, and more. The bill has cleared three committee stops in the House, and On April 29, 2019 the final version was passed and it will be presented to the Governor for consideration. This is one of several bills that may change healthcare in Florida specifically. 

If signed by the Governor, then telehealth will become normalized to some extent in Florida. The bill includes definitions, treatment standards, constraints on some activity, and even a process for engaging physicians that are not licensed in Florida. With the Kaiser survey results in mind, it is perhaps likely that Florida Millennials will engage the process. Time will tell if it becomes normalized or compelling in Florida workers' compensation. 

Interestingly, the bill includes a "venue" provision. The medical care is deemed by law to occur "at the place where the patient is located at the time the act is performed." Thus, although the physician may be located anywhere with access to the world wide web, the physician will be performing health care in Florida. 

As the South Florida Sun Sentinel reported in April, there are some issues of concern to the medical community in telehealth. First, the providers are concerned with "payment parity." That means that when the provider interacts with a patient remotely, they want to be paid consistently with the in-person patient encounters. Florida providers had also expressed concerns with the participation of out-of-state health care practitioners. 

There will also be concerns about the limitations of healthcare outside of in-person interaction. Is it necessary for the physician to depress the tongue and have us say "ah"; is it important to have our breathing heard through the stethoscope; do we need our ears examined? On the other hand, do patients need that in-person evaluation for a prescription refill? A persuasive example for telehealth was recently cited at a national conference I attended. It involved follow-up discussion with a patient after the in-person visit, discussion of reaction to medication, perceptions of improvement in condition, and saved the patient all of the inconvenience of returning to the doctor's office.

There will be continued evolution of this paradigm. Home diagnostic equipment has already evolved to allow data to be gathered on a computer or tablet. Blood sugar, pulse, temperature, blood pressure and more can be gathered in the home and seamlessly transmitted to the physician. There are platforms in use that allow doctors and patients to interact at will through texting, another favorite tool of Millennials. 

Turning back to the Kaiser survey results and some perceptions of what drives the Millennial preference, both consumers and academics are quoted in the survey analysis. The common theme to their perspectives regarding disinclination toward a "primary care provider" paradigm is convenience. Sources for the article agreed that the Internet generally has facilitated Millennials' penchant for convenience. One contends that overall "people's expectations have changed," with convenience being a primary driver in many economic exchanges. The generation's preferences may be evidenced in examples like Uber, AirBnB, and other market "disruptors." Is telehealth any different?

Both the clinic model and telehealth are seen as providing that convenience, and avoiding the delay associated with awaiting a physician appointment; being seen more rapidly when there is illness. There are further convenience complaints regarding time spent travelling to the physician (a telehealth issue) and waiting in the doctor's waiting room (with sick people and contagion). Some complain of significant waits as doctors fall behind schedule. I have also heard complaints of patients who believe they actually contracted the flu or similar maladies while waiting in a doctor's office to be seen. 

Thus there are critics of the commercial clinic model, however. and there is a broad tendency in favor of efficiency being demonstrated in a variety of service-delivery Internet platforms. Whether through the on-demand clinic paradigm or the telehealth paradigm, the Millennial desire for such services seems destined for at least some continued integration into the health care delivery process.

However, some contend that the primary care provider model is better at delivering quality care. A cited example involves a greater tendency toward unnecessary prescriptions for antibiotics outside of that model. Critics voice concern that such treatment is not helpful for the complaints and maladies, and worse may work harm on the patient.

A study published in a Journal of the American Medical Association (JAMA) concluded that "nearly half of patients who sought treatment at an urgent care clinic for a cold, the flu or a similar respiratory ailment left with an unnecessary and potentially harmful prescription," compared "with 17 percent of those seen in a doctor’s office." The critics see an added value in the one-on-one relationship and the continuity of a consistent health care provider. Pause for a moment and consider that "17 percent" of those engaging a physician are given unnecessary and potentially harmful drugs. That is almost one in every five patients. Something to think about as you look around the waiting room next you are at the doctor's office. 

The real take-away from all of this may be more basic: medicine is changing. Some of that change is likely the result of tools that are being added to the mix, such as telehealth. But, the information from Kaiser supports that some of that change is being driven by the desires of the consumers. And, while those consumer demands may be diverse and varied, when a character of service is desired by a large market constituent, like Millennials, there is likely to be reaction towards accommodating those preferences and desires. As the younger generations continue to grow and us old fogies fade, we may find our own choices dictated by those wants and desires also. We may be forced to accept new paradigms and processes.