Estate Planning and Elder Law Seminar To Discuss Wills, Trusts & Elder Law Featuring PK Law Attorneys Kimberly Battaglia and Cheryl Jones

November 20, 2014

PK Law attorneys Kimberly L. Battaglia and Cheryl A. Jones host monthly estate planning and elder law seminars on the third Thursday of each month in the PK Law Seminar Room located at 901 Dulaney Valley Road, Towson, MD 21204. Both are members of the firm’s Wealth Preservation Group and have years of experience helping families and individuals with their estate planning and elder law needs.

There is no fee for the seminar. Simply reserve a spot at least one week in advance. The seminars begin at 10:00 a.m. and last approximately one hour. Your questions will be answered and informational materials will be given out.

Estate Planning Attorney Cheryl A. Jones will discuss:

  • Trusts vs. Wills
  • Who Needs a Will?
  • Estate Tax Issues
  • Estate Planning Questions

Elder Law Attorney Kimberly L. Battaglia will discuss:

  • Protecting Your Assets From The Nursing Home
  • Creative Estate Planning Strategies
  • Tax Law Changes
  • Powers of Attorney
  • Healthcare Directives
  • Probate Avoidance

To make a reservation contact:

Rhonda King at rking@pklaw.com or 410.938.8800 at least one week in advance of the next scheduled seminar. To learn more about PK Law’s Estate Planning and Elder Law Services visit our website at pklaw.com.

“How to Apply for and Obtain Medical Assistance” Featuring PK Law Attorneys Kevin Bress and Kim Battaglia

September 4, 2014

We know you have questions. We want to help you find answers.

The law firm of Pessin, Katz Law, P.A. (PK Law) presents monthly seminars on the first Thursday of each month at their Towson office seminar room located at 901 Dulaney Valley Road, Towson, MD 21204. These seminars are designed to help families understand the medical assistance application process along with other issues involving long term care in nursing homes.  They are conducted by Kevin F. Bress and Kimberly L. Battaglia, PK Law elder law attorneys with years of experience helping people with these issues.

There is no fee for this seminar. Simply reserve a spot at least one week in advance. The seminars begin at 10:00 a.m. and last approximately one hour. Your questions will be answered and informational materials will be given out.

You will learn how to:

  • Qualify for Medicaid on your first attempt.
  • Protect assets from being spent down at a nursing home.
  • Strategically transfer assets during the 5-year look back.
  • Protect virtually all assets for your spouse.
  • Insulate your house and property from Medicaid spend own.
  • Retain funds even after a loved one enters a nursing home.

Get your questions answered:

Feel free to bring copies of any of the following documents with you. The attorney will review them and answer any of your questions.

  • Power of Attorney
  • Deed to Real Estate
  • List of Assets

To make a reservation contact:

Rhonda King at rking@pklaw.com or 410.938.8800 at least one week in advance of the next scheduled seminar. To learn more about our Elder Law Services visit our website at pklaw.com.

Legal Pitfalls in the Psychiatrist-Patient Relationship

This article presents a brief outline of potential major legal pitfalls in the psychiatrist-patient relationship. 

  • Terminating the psychiatrist-patient relationship.

This legal pitfall in psychiatric practice focuses upon communication and avoiding a charge of “patient abandonment”.  Termination requires communication with the patient, documentation to the patient’s chart or file, and perhaps legal counsel.  This summary focuses on “non-emergency” situations.  Emergency or crisis situations present much more difficulty in an attempted patient termination.  The first and most important step is notifying the patient of an intention to terminate the relationship.  A good “rule of thumb” is 30 days advance notice but the length of time may vary with circumstances.  A form of notice can be obtained from a variety of sources but it should generally reflect the following:  a definite date for the termination to take place; continuation of treatment during the period from the date of the notice until the date of termination, if possible; if applicable, a statement that continued treatment may be required with any warnings about failure to seek it; a reiteration of any medication instructions; reference to sources of referrals for a new provider of care; and the procedure for copying and furnishing the patient’s record.  Document all steps taken regarding the termination process in the patient’s record.  Consideration should also be given to the following: sending the termination notice by both ordinary and certified mail and allowing legal counsel to review the form of termination notice.  Remember that the notice need not provide specific reasons for the termination.

  • Handling “crisis” patients.

Oftentimes legal action against psychiatrists involves their failure to prevent patients from harming themselves.  Legal theories under which such actions proceed involve failure to diagnose the patient’s suicide potential, the lack of reasonable treatment to prevent suicide, and failure to properly implement a plan of treatment to prevent suicide.  Generally, as with the prescription of psychotropic medication discussed below, the exercise by the provider of “reasonable care in accordance with generally accepted medical standards” will help to shield him or her from liability, particularly if a suicide was not “reasonably foreseeable” (which is not the same as “reasonably preventable”) under the facts and circumstances of the patient’s case.  Obviously, any suicide-risk assessment must be fully documented in the patient’s chart so as to provide additional defensive material to a breach of care claim by the patient and others.  In both the “crisis” or “emergency” situations, a good evaluation of the status of the patient is crucial as to both continued treatment and termination.  If that evaluation identifies such a situation, extreme caution is called for on the part of the provider with regard to the continuation of treatment or, in some cases, termination of the provider-patient relationship.  An abrupt termination of treatment is an invitation to a lawsuit.  If a provider believes the patient is unable to appreciate a termination of treatment, whether by the provider or by the patient, consider involving the patient’s support network, within the bounds of patient confidentiality.  And patient confidentiality is important.  Although courts have held that there is a “duty to warn” when a threat is presented to a third party by a patient undergoing treatment, that is not necessarily the case when a patient is being treated on an outpatient basis and ideates suicidal tendencies.  The key issues for a therapeutic mental health provider are the adequacy of the assessment of risk to both the patient and others and the reasonableness of the treatment to prevent harm.  Some clinicians employ “no self-harm” or “no suicide” contracts with patients when they commence treatment.  The legal validity of such contracts may vary from jurisdiction to jurisdiction but certainly are not a panacea for avoidance of legal difficulties.  Ultimately, a psychiatrist should ask themselves whether, based on experience and training, they feel comfortable handling patients in crisis or in emergency situations of if some other course of action is open to providing the patient the care that he or she may need.

  • Psychotropic Medication.

Any number of legal theories of negligence may apply in the area of prescriptions for psychiatric disorders or symptoms.  These include: excessive dosing, failure to prescribe the correct drug (including handwriting failures), prescribing a non-sanctioned or unapproved by government agency drug or prescribing a drug for purposes other than those approved by a government agency, failure to disclose the risks of a particular medication regime (“informed consent”), and inappropriate withdrawal of a medication treatment regime. As with the handling of the patient in a crisis or emergency situation, good evaluation of the patient and his or her medication needs is essential to avoiding liability for failure to properly prescribe psychiatric medication.  The primary reason for this is that there is no absolute prescriptive regimen for a psychiatric patient.  Coupled with the first reason is that psychiatric disorders or the symptoms of psychiatric disorders manifest themselves on multiple levels so that a drug that might treat one symptom or disorder will not treat another or the two may not function in a satisfactory concurrent fashion.  Although courts frequently look to generally accepted “guidelines” and “principles” in determining whether a provider has breached the “standard of care” owed to the patient in prescribing medication, no guideline, principle or drug literature is a substitute for the provider’s medical judgment based on sound evaluation and monitoring of the patient.  Providers will often be able to successfully defend a lawsuit for the consequences of improperly prescribing psychiatric medication if it can be shown that their judgment was “reasonable” based on the facts and circumstances of a particular patient’s condition.  In addition to the foregoing, it is imperative that the patient be fully informed of the potential benefits and burdens of the medication regime and that “informed consent” be obtained and documented in the patient’s record for the plan of treatment to be undertaken.  Psychiatrists should be acutely aware of and resist attempts by third-party payors to limit prescriptive medications to inappropriate or inadequate formularies or substitute for prescribed medication.

  • Documentation.

In both the psychiatric inpatient and outpatient settings, the need for documentation in order to attempt to avoid a provider’s liability for misadventure is huge.  Among the areas to be touched upon in such documentation are preliminary or “screening” evaluations; the plan of treatment for the patient; how that plan will be implemented and periodic and timely review of the efficacy of the plan of treatment.  In addition to the foregoing need for clinical documentation of treatment, providers must be aware of legal documents which exist that provide for a patient’s care or refusal of same.  These documents include “living wills”, “health care proxies”, and “durable medical powers of attorney”.  Providers must inquire as to the existence of such documents, or those similar thereto in the jurisdictions in which they practice, and their existence, vel non, should be documented in the patient’s chart.  The provider should carefully review such documents for any provisions regarding treatment, or the refusal thereof.  In some instances it may be incumbent on the provider to seek legal advice as to the meaning of any particular direction or set of directions or, perhaps, the overall validity of the document.  Remember that in our ever increasingly mobile society, a patient’s directive which is legally valid in one jurisdiction may not be in another.  Moreover, a law may exist which renders an older document outdated.

  • Informed Consent.

In all areas of medical practice, it is the patient’s ability to make choices about his or her treatment either directly or through a surrogate which is paramount.  Informed consent is no less paramount in all areas of psychiatric treatment since such consent may become particularly problematic if a patient lacks competency.  Competency, the provision of clear and adequate information on the course of treatment, and the voluntary nature of the consent given are crucial factors in order to help bolster a defense to a psychiatric misadventure claim.  Even something as “simple” as a change in medication dosage may require such consent.  Informed consent should always be obtained in writing either by the patient or the patient’s legally recognized surrogate.  Such a surrogate may include the holder of a legal document as outlined above, a court appointed guardian of the person, or even a court itself.  In one area of psychiatric misadventure informed consent simply will not obtain.  That area lies within the allegation of sexual misconduct for which the issue is the “breach of trust” on the part of the treating psychiatrist and not whether the patient’s sexual act was “consensual” on his or her part.  Also, in nearly every jurisdiction of the United States, a minor may not provide “consent” whether or not it is an “informed consent”. 

As always, a psychiatrist confronted with a patient complaint must seek legal counsel immediately.  This article is for informational purposes only and should not be construed in any manner as providing legal advice on any particular case or situation. 

Joan Cerniglia-Lowensen has over twenty years of civil litigation experience throughout the State of Maryland in both state and federal courts.   Prior to becoming an attorney, Ms. Cerniglia-Lowensen was a practicing nurse.  As an attorney, she primarily practices in the health care defense field including.  She also defends health care providers in disciplinary actions before the Maryland Board of Nursing, Maryland Board of Physicians and other Boards.  Ms. Cerniglia- Lowensen can be reached at jclowensen@pklaw.com.  

McDonald’s and Uber: Too Much Control Over Employees

There have been some seismic movements of late in the labor and employment field.  First, McDonald’s was found to be a “joint employer” with its franchisees by the National Labor Relations Board.  As widely reported, this could make the fast-food giant responsible for the working conditions at its franchised restaurants.  Second, the “car service” company, Uber Technologies, Inc., (“Uber”) is facing a class action lawsuit in the U.S. District Court for the Northern District of California (San Francisco Division) claiming that its drivers are its employees and that Uber has wrongfully retained a portion of the drivers’ tips.

McDonald’s has vowed to fight the finding of the NLRB as to its status as a “joint employer”, a decision largely based on the degree of control it exercises over its franchisees.  A large degree of control is essential to a successful franchise operation.  Yet, that very control is what persuaded the NLRB to take the “joint employer” position.  However, this is an argument and “fight” which has been carried to McDonald’s for years.  So, this is a case which we will leave for discussion when the outcome becomes final.  Suffice it to say that the ultimate outcome of the NLRB ruling and the expected appeals is one that will impact franchised businesses and their operators of all sizes.

Uber refers to itself as a “peer to peer” (“P2P”) business.  That means it puts customers and service providers together to receive services of the providers.  Uber accomplishes its provision of transportation service to consumers through a mobile phone application by which those needing transportation may set up an Uber account allowing them to summon a vehicle through the Company’s proprietary software (often a limousine or luxury SUV) so that they may be picked up from their present location and transported to their destination.  Uber drivers (“partner carriers”, according to the Company) also have an application which acts as a “taxicab meter”, and it also allows the driver to either accept or reject the “fare”.  The customer is notified of the fare in advance through the software. A rejection of the fare by the first contacted driver causes Uber to communicate with the next closest driver in the customer’s vicinity.  The customer receives information on the Uber driver coming for them and can track the driver’s progress on the customer’s mobile phone.  According to the lawsuit, filed by two Uber participating drivers on behalf of all Uber drivers, Uber advertises a flat rate for its service and that the driver’s tip is included in that flat rate.  The drivers contend that Uber exercises sufficient control over drivers allegedly by requiring that they follow rules regarding conduct with customers, vehicle cleanliness, and monitoring of the timeliness of pickup and delivery of customers.

In addition to the contention of the lawsuit that Uber drivers are really employees and not independent contractors, a claim is made that the Uber drivers do not receive all their tips, but that a portion of the tips included in Uber’s pricing is retained by the company.  According to the filed court documents, the inclusion of the tips in the fixed price discourages Uber customers from separately tipping the drivers.  Uber’s position is that it receives a “commission” for its service to the driver, collecting all of the charges for the trip and retaining twenty percent of the charges while remitting the balance to the driver.

Uber’s basic contention is that it is a P2P service and does not exercise the degree of control over drivers outlined in the lawsuit.  Uber drivers furnish their own vehicles to operate the service and bear the expense of such operations.  (Uber drivers are not “dedicated” to Uber.  In other words, they may be driving customers not connected with Uber and only take Uber customers when they have an opportunity to do so.  Uber does not require the drivers work exclusively for it, which would certainly make them “employees”.)  Under California law, such expenses, if incurred by employees for the benefit of their employers and are necessary for employees to perform their jobs, must be reimbursed to the employees.

Uber is immensely popular with young people who view its vehicles and operators as a “step up” from traditional taxi services. Drivers frequently dress and act much like “chauffeurs” as opposed to cab drivers.  However, taxi companies and regulators are unpersuaded by Uber’s argument that it is not a car service which must be regulated by the government.

On August 6, 2014, the Maryland Public Service Commission issued Order No. 86528 directing Uber to file an application for a motor carrier permit in order for Uber to continue its “UberBLACK” or “UberSUV” services in Maryland.  The Order affirms a Proposed Order in the case (Case No. 9325) even though Uber has filed an appeal of the Proposed Order.  In other words, the Commission has chosen to finalize its Order even though Uber’s appeal of the Proposed Order has not yet been heard by a judge.  Uber’s two basic contentions are that it does not own the vehicles that transport customers and that it is a technology company by virtue of the mobile phone application it has designed and employs leaving the Commission with no authority to regulate the Company.  As with the McDonald’s case, the Commission points to the amount of control Uber exercises over drivers through its policies, evaluations, and right to end the relationship as evidence of Uber being a “common carrier” under Maryland law.  The Order also acknowledges the technological aspect of Uber’s service and that the Commission’s regulations have failed to keep pace with peer to peer technologies which provide transportation services to consumers.  Consequently, the Commission’s Order directs its staff to draft such regulations.

Uber now operates in many countries worldwide and has raised over a billion dollars in investor capitol.  Those figures alone indicate a strong market for what it does.  Apparently, its business model has caught taxi operators “flat footed” and they are justifiably concerned about having a level playing field.  Forcing Uber into “motor carrier” status helps to level that field by requiring it to follow some sort of rate setting procedure and insuring that consumers are protected by proper rate setting and regulation. Uber’s adjustment of its rates during peak periods of demand for its services, a practice referred to as “surge pricing”, might become illegal under the Commission’s eventual regulations.

The attorneys at PK Law can guide you in all aspects of labor and employment law, including whether an worker is an employee or independent contractor under the applicable law or guidelines of the applicable governing authoriting.  For more information contact Leslie StellmanEdmund O’Meally, Mark Maneche or Greg Weiner.

PK Law Member David N. Pessin Best Lawyers® 2015 Lawyer of the Year for Sports Law for the Baltimore Area

Towson, MD- Pessin Katz Law, P.A. is pleased to announce that Member David N. Pessin was named Best Lawyers® 2015 Lawyer of the Year for Sports Law for the Baltimore area. This is David’s second time receiving this award as he was named Lawyer of the Year for Entertainment Law – Motion Pictures and Television in 2012. 

David is recognized for his experience and innovation in Estate Planning, Estate and Gift Tax Planning, Guardianship/Conservatorship (uncontested), Medicaid, and Planning for those with Disabilities. He is also one of the few attorneys in this area who concentrates in planning for and advising professional athletes and broadcasters, in personal and business matters. David has established a long and distinguished career in the legal field and a solid reputation nationally and internationally as a professional athlete’s secret weapon.

David is also selected for inclusion in the 21st Edition of The Best Lawyers in America in the practice areas of: Entertainment Law – Motion Pictures and Television, Entertainment Law – Music and Sports Law.

Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. Lawyers being honored as “Lawyer of the Year” are selected based on particularly impressive voting averages received during the peer-review assessments. Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity.

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