Oregon Personal Injury Lawyer Blog

A continuing education class on the use of CPT® codes got an Oregon woman wondering whether her employer used the wrong code, intentionally, to make sure insurance paid for procedures. This Oregon business performed CT scans, mammography and other radiological procedures. CPT® codes (Current Procedural Terminology) are reference numbers for medical procedures established by the American Medical Association. Insurance companies, Medicare and other payers rely on CPT® codes when deciding whether to pay for a procedure and, if so, how much.

After some more research, my client decided that she might be participating in civil fraud and criminal activity if she continued working. If caught, at a minimum, she might lose her professional licenses. At worst, she'd go to jail and be sued. So she quit, and wisely so.

In Oregon, it is against the law to present false bills for health care services or supplies. Participation in it is a felony. Oregon law also defines "racketeering activity" to include false medical billing.

The federal false claims act also makes illegal any false claims submitted for payment to the federal government, including medical bills paid by Medicare. The federal law has a "Qui Tam" provision. That means the whistleblower can earn a reward or bounty for money recovered by or for the government. The whistleblower earns a percentage (15% to 30%), the amount of which depends on whether the government prosecutes the claim or whether the whistleblower and her attorney prosecute the claim. Under the federal false claims act, anyone with knowledge can pursue the claim, not just employees.

Oregon and federal laws protect current employees who blow the whistle on cheating employers. That is, if an employee reports false CPT® coding - or other medical fraud -- to the authorities, the employer may not fire her or otherwise change her working conditions.

My client decided against pursuing a whistleblower claim under the federal false claims act. She believed that the best we could do is win a worthless judgment against a corporation that was about to go out of business. But for those of you working for big enterprises - such as national assisted living facilities or big hospitals -- that are cheating Medicare, keep in mind that you can provide a great service to all of us taxpayers if you decide to become a whistle blowing, Qui Tam, bounty hunter.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Yesterday, the Oregon Supreme Court held that employers may fire employees who use medical marijuana despite the employee's claim that disability discrimination laws required the employer to at least try to accommodate the disability for which he used marijuana.

Emerald Steel Fabricators of Eugene, Oregon "has been doing structural and mechanical fabrication, machining, sandblasting and painting since 1975." The employee had worked there fewer than 90 days and needed to pass a drug test to continue work. That's when he confessed his drug use to management. For over a decade, he had experienced anxiety, panic attacks, nausea, vomiting and stomach cramps. A physician declared it a "debilitating medical condition," and opined that marijuana might help. That was enough to get a medical marijuana card.

The employer fired the employee, and the employee filed a claim. An administrative law judge found in favor of the employee. He held that Oregon law requires employers to engage in a "meaningful interactive process" to consider whether it was possible to accommodate the employee's disability.

The employer appealed all the way up to the Oregon Supreme Court. It argued the law protecting disabled workers does not apply to workers who use illegal drugs, and medical marijuana is an "illegal drug" even though its possession and use is not prosecuted under Oregon law.

The Court agreed. It noted that ORS 659A.122 defines "illegal use of drugs" to include drugs that are illegal under state law OR the federal Controlled Substances Act. The Court held that because medical marijuana is considered illegal drug use for this purpose -- even if it is not illegal under other statutes - the employer is "excused from whatever obligation it would have had under ORS 659A.112 to engage in a 'meaningful interactive process' or otherwise accommodate employee's use of medical marijuana."

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

The Portland, Oregon jury awarded $1.4 million dollars in the Boy Scouts child molestation case. But the trial is not over. Next, the jury considers punitive damages. This post discusses what happens to the money if the jury awards punitive damages, which is a timely topic, in light of the looming April 15 tax deadline.

First, what did the victim need to prove to win punitive damages? In Oregon, the person must prove, by clear and convincing evidence, that defendant "has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others." From news reports, the jury made that determination.

Next, the lawyers will present evidence and argue about how much money the jury should award. For purposes of this post, let's say the jury awards $1 million in punitive damages. Who gets the money?

The State of Oregon takes 60% off the top. $600,000 would go into a fund managed by Oregon's Department of Justice for the benefit of crime victims. Basically, it is a tax that is earmarked for crime victims. The money cannot be used for schools, jails, police, or anything else. It is for crime victims.

Next, 20% goes to the attorney. So, the attorney would gross $200,000. Of that, the federal government would likely take 35% ($70,000), and the State of Oregon could take 11% in income tax, which is $22,000.

The final 20% goes to the victim, who will probably suffer the same tax consequences.

So, for the final tally if the jury awards $1 million in punitive damages:

• State of Oregon: $644,000.

• U.S. Government: $70,000

• Victim's Attorney: $108,000

• Victim: $108,000 or 10.8% of the award.

In law school, we were told that purpose for punitive damages is to punish bad behavior and deter others from behaving similarly. However, when a person does the math, punitive damages also serves to raise revenue for the state and federal governments. Now you know why the Oregon Flag flies over this post.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

While the Boy Scout sex abuse jury deliberates in Portland, Oregon, I think about the extraordinary commitment of the victim's attorney. Regardless of the verdict, attorney Kelly Clark deserves praise for bringing evidence into the open that has been kept under wraps for decades. He has earned the gratitude of his client and all people who need the threat of a lawsuit to accomplish justice. Unless we lawyers actually try cases, insurance companies, pharmaceutical companies, and other defendants will just shrug their shoulders when an ordinary citizen deserves justice but cannot afford to hire a lawyer.

I know from my own experience that a case like the one Mr. Clark tried caused him to spend, probably, over $100,000 out of his pocket. That's only costs and does NOT count his time, which likely totals hundreds of hours. If he loses, certainly, the attorney will not be paid for his time. Most often, our clients cannot afford to pay back out-of-pocket costs, either. It's a big gamble. If the victim wins big, then the defendants will likely appeal, and it could be several years until the victim and his attorney ever gets paid.

So why do we do it? Why do plaintiff's lawyers risk so much for their clients?

We do it out of a sense of responsibility to our clients, to our profession, and to the system of civil justice. The best lawyers have a passion for justice, and we can't sleep if we think the "bad guys" might get away with something. The true believers will fight their best fight for justice.

We can never know how a trial will conclude. There are so many variables. Will all of our evidence be admitted? Will these 12 jurors see things as we see things? Will they get confused or make decisions based upon something other than the law and facts as presented? Did O.J. Simpson kill Nicole?

We do not know what the jury's verdict will be in Portland, Oregon. However, we do know that Kelly Clark believed in his client and his cause and gave all. By doing so, he upholds the highest ideals of the legal profession.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

When defending Oregon lawsuits for whiplash following car accidents, insurance companies often hire "experts" to pooh-pooh the claims. Their reports all look the same: "no objective evidence" to support claims. That's like saying you can't see pain, which is true, but misses the point.

But do the insurance companies ever pay to look for objective evidence of the symptoms of chronic whiplash? Studies show that car accident whiplash patients suffer the following at a much higher rate than the general population: headache, migraines, tiredness, neck pain, upper back pain, sleep problems, thinking problems, low back pain, and many other issues. Insurance companies do not pay for tests to validate claims. Insurance companies pay for "doctors" to dismiss the claims and bad-mouth people who hurt, calling them liars, cheats, and / or crazy.

Scientists have found physical changes more prevalent among those suffering chronic whiplash-associated disorder than with the general population. I will discuss two of them.

The European Journal Of Pain reported a study of regional cerebral blood flow. Researchers C. Linnman and others used some super high-tech equipment to compare people, and, sure enough, they found changes in cerebral blood flow that matched up with their neck disabilities. So to those insurance company "doctors" I ask, "How do you fake cerebral blood flow?"

Other researchers have used Magnetic Resonance Imaging (MRI) to study obscure details in certain flexor muscles in the neck. The journal Spine reports the study by Elliott and other researchers of "fatty infiltrate" in muscles and the cross-sectional area (CSA) of key muscles. Sure enough, the study showed more fatty infiltrate and larger muscle CSA in car accident patients than in the general population.

Elliott's most recent study of flexor muscles is consistent with his earlier study of women suffering from whiplash, which showed higher fatty infiltration their neck extensor muscles.

These objective measures can only be used for comparison purposes. It would not make sense to use them in an individual case. What the studies show is that, despite all of the slurs that whiplash victims must endure from insurance company doctors, the bodies of car accident victims suffer physical changes that you cannot see with the naked eye.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Window Safety Week highlights the fact that, like clockwork, children fall from windows every year when the weather warms. Oregon's trauma registry records about 50 window falls per year. Other children are luckier; they fall and do not suffer significant trauma. Nationally, the number of children suffering traumatic injury from window falls is in the thousands per year. The most vulnerable are children under age seven, who suffer brain injury and death from window falls.

These tragedies are as preventable as they are predictable.

Window guards, screens & mesh save lives.

For decades certain jurisdictions have required window guards. The laws work, saving lives and tragedies. As of February, 2010, Oregon's building code addresses some aspects of window falls, but safety professionals know that it is not enough. (Previously, I wrote about the new Oregon regulation.)

With the spread of these laws, manufacturers are competing to produce safety devices that look better than the old bars. The latest product, the window guard mesh, looks more like a decorative curtain.

Even inexpensive window stops can save lives, so long as parents do not open the window wider than their child's head.

Conclusion.

Window Safety Week raises the awareness of this safety issue. We know that the tragedy of brain-injured and dead children is as predictable as it is preventable. Please help spread the word to help families in Oregon and Washington.

The Oregon Court of Appeals clarified when a patient may sue a clinic or hospital alleging medical malpractice of a physician. In Eads v. Borman and Willamette Spine Center, Mr. Eads became partially paralyzed after a series of back surgeries by Dr. Timothy Borman. Mr. Eads sued Dr. Borman and also sued Salem's Willamette Spine Center, LLC, because he believed Dr. Borman was acting on behalf of the clinic. Oregon's Court of Appeals held that Mr. Eads's "subjective belief" was not enough without facts of certain conduct or control by Willamette Spine Center. It ruled that Willamette Spine Center was not responsible for the conduct of Dr. Borman. The court did not say whether Dr. Borman's medical practice was excellent or poor or had anything to do with Mr. Eads's injury.

Generally, when someone is acting on behalf of another and subject to his control, then you can sue both (1) the "agent" or employee and (2) the "principal." The Court held that there was no evidence that Willamette Spine Center controlled the work of Dr. Borman. It merely owned the building, leased the space, provided signage and a logo. In fact, Dr. Borman did not even pay rent to Willamette Spine Center. He paid one of the tenants in an office-sharing arrangement.

Although one of the owners of Willamette Spine Center referred Mr. Eads to Dr. Borman, the court found that the referral of a patient between doctors had nothing to do with the corporate landlord. It could be different if Dr. Borman were REQUIRED to accept any referrals from the clinic or from, say, a government agency. But Dr. Borman was free to accept or reject the patient.

The Oregon court also rejected the claim that Willamette Spine Center, in effect, tricked Mr. Eads into thinking Dr. Borman was acting on behalf of the clinic. "Apparent agency" exists only when the apparent principal acts to "hold out" the person as its agent and the injured party relies on that act when hiring the agent. Adding Dr. Borman's name to the building directory was not enough, held the court. Although the Willamette Spine Center name and logo appeared on Dr. Borman's business card, the court noted that was an act of Dr. Borman, not an act of Willamette Spine Center. Dr. Borman's use of the building's name and logo did not make Willamette Spine Center responsible for Dr. Borman's work.

According to this case, a clinic or hospital or other entity is responsible for physician malpractice when: (1) it employs the doctor, (2) it requires the doctor to accept patients, (3) it has the right to control the work of the doctor, or (4) it acts to make patients think that the doctor is the employee or agent of the clinic.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.