Category: HealthLaw Blog

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

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As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

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Cheeky Monkeys. It doesn’t take a genius to be a thief or even to hold what you’ve stolen for ransom. You can train a monkey to do it. Tourists at a temple in Bali, Indonesia are getting their valuables stolen and held for ransom— by long-tailed macaque monkeys who have learned to steal items from tourists, then negotiate a tribute in exchange for the valuable’s return.

You can watch it all on YouTube, as tourists walk by the temple and one of the monkeys grabs the tourist’s cell phone or sunglasses. The tourist must offer a treat to get the monkey to drop the merch. But, If a tourist offers too little, a banana instead of a Snickers, the tourist receives a growling rebuke. It’s all great fun and to be sure, the tourists do invite and cooperate in the criminality.

“With men we will get money, with money we will get men, said Caesar.” Which brings me to today’s topic, the US Dept. of Health and Human Services Office of Civil Rights (“OCR” or “HIAPPA Police”) have proposed new rules to blame management companies, lawyers and providers for not trying hard enough to stop cyber criminals from getting our private information.

First observation: as I have published before, the Office of Civil Rights doesn’t give one whip about your “civil rights. ” See “HIPAA and Medical Records Privacy, A Survival Guide for Texas Attorneys. 78 Tex. B. Journ. No 7., 540 July (2015). That’s just a “stalking horse” for the real intention, which is to try to protect government programs from financial thieves.

Second observation: There is also a line of thinking, dating back to Thomas Jefferson’s “Notes on the State of Virginia,” that federal agencies exist to expand power and tyranny, just like the old monarchs did. Give ’em a little power, they only use it to get more power:

“With money we will get men, with men we will get money, said Caesar.. .
It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.”

“The Beatings Will Continue Until Morale Improves.” Let’s see how government “beatings” have been working so far. Regardless of the regulating agency, HHS or FTC or Treasury banking regulations, anyone with personal information has to “double pinky swear” to try really, really hard to protect it.

​In 2024, healthcare data breaches affected 184,111,469 records, representing 53% of the U.S. population. With 703 large breaches reported to OCR. The largest breach occurred at Change Healthcare, affecting 100 million individuals through a ransomware attack that caused widespread disruption to healthcare services and medication access across the U.S. healthcare system. The year saw 13 breaches involving more than 1 million healthcare records each, with 11 caused by hacking incidents and 8 involving business associates of HIPAA-covered entities.

But, don’t worry (your data is already out there), so nothing we do will probably make any difference. (The “beatings” just make the OCR feel like they are doing something productive, like growing their own agency, when they don’t have a clue what to do.) While writing this, I received another Life Lock email, that 50 million college student records were stolen from something called “PowerSchool.”

This is but one of many alerts I have received that companies I have never heard of, have lost my private data. Previously, there were 855 million records leaked from mortgage giant, First American Financial, an Equifax data breach resulted in 147 million customer records stolen, Capital One had an event where where 100 million credit applications were stolen, and JP Morgan Chase, where 83 million accounts were stolen.

Final observation: I don’t think “trying harder” is working. This has gotten so ridiculous, I don’t’ think there is any point pretending that out data has any “privacy” left. That won’t stop the OCR from passing new rules to punish us until we “do better.”

The proposed changes include rules for both Covered Entities (like doctors and hospitals) and Business Associates (like lawyers and accountants) to do more training and report more on how much training they have been doing. This assumes the breaches are due to ignorance.

The word “sabotage” comes from the French word “sabot,” which is a shoe made of wood worn by peasants. Peasants working in factories, fearful they would lose jobs to technology, would deliberately use the shoes (sabots) to either kick machines or clog the gears, to prevent progress. See also, “Luddites.” Instead of a wooden shoe, today employees just need to click on an email from a Nigerian Prince.

I personally would like to see us use drones to drop electronic pulses on top of the bad guys heads, to fry their computers? (Might not work, but I feel better.)

Until then, the only way to protect ordinary people, is in on the back-end. Banks have gotten pretty smart about knowing when I didn’t buy Grub Hub in Amsterdam. I don’t want to know how they do it. . .(Just keep doing it!)

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

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As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

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I don’t post blogs with any deliberate political intention. I feel more like a kid caught in the middle when mommy and daddy start talking politics at the dinner table. Seems to me the biggest problem is that each side is reinforced by the television news which they “hate watch.”

The idea of TV news is to convince you your side is the “good guys” and anyone disagreeing you must be literally, “Hitler.” Which is just “bait concealing the hook.” (If you haven’t figured out, during the commercial breaks both Fox News and MSNBC play the same ad for the same big pharma product.)

But even as a little kid, I knew it was a big problem, when you turn on the faucet and there was no water. I can’t imagine how much worse it would feel, if your neighbor’s house is on fire and yours is catching and the fire hydrant doesn’t have any water. But that probably would never happen.

Why is Los Angeles on fire? Southern California has long had a problem, in that much of it is dry desert, with the San Gabriel Mountains standing in between the desert high plains to the east, with the Pacific coast to the west. Here the San Andreas fault and shifting tectonic plates cause the landscape to rise almost 10,000 feet, then drop quickly as it levels out to the sea. Hot air from the desert blows toward the sea, as it descends quickly down the mountains. This air mass lands on the coastal plane, which compresses the accelerating air, heating it up and drying it even further. The result is a big giant thermal leaf blower, with wind speeds up to 100 mph, known as the “Santa Ana winds.”

This effect is so predictable, that Californians have come to refer to this time of year as “fire season.” Arguing about what causes this is a little like Bugs Bunny and Daffy Duck arguing whether this is “duck season” or “rabbit season,” when the fire is literally coming down the hill. Its a bit too late.

Let’s say that climate change plays a big role in the danger from the Santa Ana winds. The question is, what do you do when you when you know Santa Ana winds are coming?

California’s stack of problems. California still has electrical wires above ground on 100-year-old poles, which rise only a few feet from dense underbrush that grows naturally in the hills. You can see where this might be a problem in 100 mile-an-hour winds.

Los Angeles county is the most densely populated in the country. They need water, lots of it. Because it is in a desert, that means no rain clouds. The brush in “them thar hills,” gets really dry. As a result, Los Angeles must pipe water in, which makes corrupt people rich, like John Huston in Chinatown.

California’s cloudless climate also attracts huge numbers of homeless people. Some are addicts and some are mentally ill. They can live on the streets in daylight, but deserts get cold at night, due to the lack of cloud cover, because clouds keep heat from dissipating. That’s where the dry brush is a godsend to the homeless. They make campfires in the hills out of dry brush at night stay warm. Which isn’t so much a problem, unless you live where there are 100 mile-an-hour winds.

California never buried the power lines underground, nor addressed the homeless. Instead they used to build zig-zagging fire breaks in the brush to stop these fires from spreading. California also used to build reservoirs to hold water, but like the Bugs Bunny episode, “Wet Hare,” environmentalists got the government to blow up their own dams because of wildlife concerns. I didn’t catch this when I was a kid, but Bugs Bunny, a wildlife creature, actually asks the industrialist, “what gives you the right to dam up the water?,” before tricking the bad guy into blowing them up himself. (Bugs, the environmentalist is so annoying, the industrialist will do anything to shut him up, including blowing up his own livelihood.)

Sometimes I think everything I needed to know, I learned in kindergarten. I am not sure on all of the problems in California, because instead of cartoons, we now get news from Fox News or MSNBC, who are really just trying to sell erectile function drugs for the sex that no one is having these days because of the stress.

“Great idea with the best of intentions, what could possibly go wrong?” So, instead, I watch YouTube channels, one of my favorite being, “Great Moments in Unintended Consequences,” which are three- or four-minute videos about moments in history when the government had a problem and their solution backfired.

In Episode 12, for example, in Texas “poopy” birds were congregating in the oak trees above the heads of doctors at a Texas Medical Center campus. So, administrators put up nets to make the birds go elsewhere. The narrator intones, “Sounds like a great idea, with the best of intentions, what could possibly go wrong?” It turns out, birds eat caterpillars, including North America’s most venomous, megalopyge opercularis, which grew in numbers by 7,300 percent. They can kill you. Unless the birds kill them first.

The moral of the story. If there is anything good to take away from the LA fires, it is this. Probably, we need to have a hierarchy of concerns. First, make sure that there is water in the tap, food on the shelves, electricity in our homes, doctors when we call for one, and fire departments with people who can carry a firehose up a flight of stairs. Everything else is important, but probably not a question of life or death. We are all just a few missed meals from total anarchy at all times.

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

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As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

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I have noticed more and more lawyers are placing their photos in their email signature block. Sometimes, there are awards listed, cute aphorisms, and information that makes them “mini” website banners. This seems like a pretty good idea. So what are the rules for lawyers?

The School of Athens. Perhaps one of the first “selfies” was taken between 1509 and 1511, when Pope Julius II commissioned Italian Renaissance painter, Raphael to decorate a palace in Vatican City. The resulting fresco, The School of Athens, depicts a congregation of the world’s best philosophers, mathematicians, and scientists, from Plato and Aristotle, to Socrates, Pythagoras, Archimedes and Hypatia of Alexandria.

Importantly for our purposes, out of the 52 characters depicted in Raphael’s fresco, the only person looking directly at the “camera,” is Raphael himself. Think about this for a minute, an independent contractor 500 years ago, working alongside the masterpieces of Michelangelo and Leonardo DaVinci, decided to take a “selfie” and plaster it permanently into a wall at the Vatican.

Whether or not Raphael did this to advertise his services, I don’t know. But if we do it today, this would call into question the rules of “commercial free speech.”

Commercial Free Speech. I have this crazy notion, that people would more likely send me business, if they know who I am. Seems to me, not placing your photo and what your do in your email signature is a waste of good space. Although you don’t need permission from the Pope to do it, you would have to get it past licensing boards.

The U.S. Supreme Court case of Bates v. State Bar of Arizona (1977) following the Court’s holding in Virginia State Pharmacy Board v. Virginia Citizens Consumer Counsel, held that licensing boards cannot ban truthful, non-misleading advertising of professional services, on the grounds that commercial speech is protected by the First Amendment. Subsequent decisions follow the Central Hudson test, which held the government can ban false or untruthful speech, but cannot ban potentially misleading commercial speech, if a disclaimer would do the trick.

I remember the days before Bates v. Arizona, when lawyers were limited by ABA model rules, to printing their names in black and gold-leaf, on the storefront window of their shops on main street. There was even a limit how many inches in height the letters could be. Nowadays, no one has a brick and mortar shop on main street anymore. Where else would you put your name, but your signature block? So, what else can you put there?

There are State Bar rules for lawyers (and separate rules for doctors under 22 TAC 164.3 and medical professionals at the bottom of Tex. Occ. Code 102.001), that we must consider.

In Texas, lawyers must adhere to Tex. Disciplinary Rules of Prof. Cond. 7.01-7.06. Which breaks down communications into three categories depending upon intent: (1) “communications,” which are basic, such as letterhead (2) “advertisements” and (3) “solicitations.” The rules become more strict with respect to “time and place,” (the far end of the spectrum being, “barratry” for example, soliciting at the scene of an accident.)

Rule 7.04 requires pre-approval of advertisements and solicitations, but Texas rule 7.05 exempts from advertising “pre-approval” rules, any communication in social or other media that consists “primarily of the type of information commonly found on the professional resume of lawyers.” Which I suppose would cover photographs and basic information in a signature block. If in doubt, you can always obtain prior approval Under Rule 7.04.

One Disclaimer: Whether your photo looks enough like you these days to pass the Central Hudson test for “truthful, non-misleading” speech, well, that’s your business, not mine. (I honestly don’t think the State Bar would touch that with a 10-foot pole.)

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

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As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

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The “Island of the Lotus Eaters.” A big reason I write these blogs is because people come up to me all the time and tell me they enjoy my writing. This week as we begin a New Year, I want to talk about something that isn’t obvious here: The absolute “miracle” that anyone still comes up and talks to me at all.

You may have noticed in the past decade and a half (basically since the invention of “smart phones”), people don’t smile or make eye contact anymore. We walk around with a blank look, that one author I want to tell you about calls “RBF” (resting bothered face.)

In Book IX of Homer’s The Odyssey, inhabitants of a particular island are called the Lotophagi, or “lotus-eaters.” They didn’t have “smart phones” to scroll, instead they had “lotus fruit.” Which was said to be super sweet (and similar to online content), there was an endless supply of it. However, as with most Greek mythology, the “gods never give with both hands.” Anyone who ate this fruit would become lethargic, derelict of duty, and essentially withdrawn and isolated. (Which sounds awfully familiar.)

Alfred Tennyson also wrote a poem, “The Lotos-Eaters” in which the group of mariners who landed on the island, had to be torn away from their preferred isolation, kicking and screaming.

How to “get off the island” this year. Last week I found a great YouTube interview, “The Secret to Being More Likeable,” with body language expert Vanessa Van Edwards. Vanessa also has a website, “The Science of People.” (Yes, I get the irony, YouTube and websites are a kind of “social media” you can watch on a smart phone instead of interacting with people.) But trust me here, the interview is only 15 minutes long and very helpful, if you want to drag yourself, or someone you love, back to civilization.

Vanessa says that people will more likely trust you enough to talk to you, if you are more “likeabe,” which consists of two components: (1) “competence” and (2) “warmth.” She also has techniques for conveying these qualities.

The “curse of smart people” she says (and if you are reading this, 99 percent of you have a medical degree or juris doctorate, which means you are possibly also “cursed” by being smart), is that “smart people tend to rely only on competence alone,” trusting that people will like you just because you know stuff. Smart people will need to work on “warmth” too.

“Go look in a mirror and let your face go blank,” she says. (Like when you are looking at a smart phone.) “You might find your face has a natural frown when you are not doing anything with it.” She continues, “RBF is ‘cold and stoic’ and the reason many people won’t talk to you is because too much “competence” without being “warm,” leaves people feeling suspicious that you might bite their heads off,” because you have better things to do than talk to them.

Ever wonder why doctors wear scrubs and a lab coat? “Competence” still matters she says, when it comes to getting people to trust you enough to talk to you. I noticed this a long time ago, as a lawyer, that people are nicer to me and more likely to talk to me, when I wear a suit and tie. I never really thought about it much more than that, but I suppose for the same reason doctors wear scrubs.

The advantage of wearing a warm smile. Finally, “like a thermostat,” Vanessa says, “we can dial up warmth, just by smiling.”

I must confess, I do have a natural advantage here when it comes to getting people to talk to me. I am from Mississippi where we smile all the time. (My daughter, who is half-way through law school at Ole Miss reported she had to adjust to this, “Dad, I don’t understand it, they are all so damned happy.”)

I have also noticed, by the way, what works one-on-one, tends to be contagious within larger groups. If people see that you are someone others like to talk with, then others will more likely want to connect with you as well. This may take time, but smiling has another advantage these days.

If you are smiling in public, you will essentially be the only one doing it it many cases. A good start is to put the phone down. It isn’t easy to completely change the way people behave, but it is a pretty good resolution, to at least try to help everyone get back on the boat to civilization where we talk to each again.

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

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As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

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“There is already a Buster Keaton movie about it.” Last week, I wrote about the targeting of the United Healthcare CEO in Manhattan. What followed was an outpouring of sympathy– for the shooter. Some even made jokes about the McDonalds employee who tipped off the police. (“Don’t go to that McDonalds, it has rats.”) People don’t like health insurance companies.

One of my clients office managers wrote me, “they aught to make a movie about all of this.” Well, Adrianne, they already have (sorta). So pull up a chair and some popcorn, and I will tell you how Buster Keaton figures into it.

The Dallas Bar Association Headquarters is located in a mansion across the street from my building. If you have ever seen a photo of our skyline, I am in the big skyscraper with a hole in the top.

So close, if my building ever fell over, the DBA Headquarters might just survive the way Buster Keaton did in a silent film from 1928. In the film, a house facade falls over onto Buster, but he survives without a scratch, because he just happened to be standing where the only loophole, an open window, was carved out of the façade. (Like “Chekov’s gun,” Buster Keaton’s loophole is gonna figure prominently in our plot when the curtain falls on Act III.)

Bonnie & Clyde. One of the top 100 movies of all time is 1967’s Bonnie & Clyde, starring Faye Dunaway and Warren Beatty. The film is about a real-life gang of bank robbers who operated about the same time Buster Keaton was shooting silent films. In 1934, police shot Bonnie & Clyde, a whole bunch of times, to stop them from robbing banks. Like with the healthcare CEO shooting, many people sided with the bank robbers. People hated banks.

I know this, because the Dallas Bar Association Mansion is next to my building. In 1934, the Mansion was known as the Sparkman-Holtz Funeral Home, the location of the funeral of Clyde Barrow. If you walk in the front door, turn to the left, you will find a vestibule, with three photos depicting the crowd that had gathered outside the mansion.

People lined up to get a glimpse of one-half of the outlaw couple (or what was left of him), some saw Clyde as sort of “folk hero.” In the Great Depression, people hated banks even more than we hate health insurance companies, because 9,000 of them failed, and people lost everything. (There was no FDIC insurance back then.) Add to that, almost everyone knew someone whose farm had been seized by a bank foreclosure. So people really hated banks.

Tax and spend: Giving a toddler a book of matches. Willie Sutton, another bank robber was asked in 1933, why he robbed banks. He answered, “because that’s where the money is.” But more importantly for our purposes is “what kind of bank notes” Bonnie & Clyde were stealing. There actually was gold backing up the value of the bank notes.

Until the 16th Amendment created income tax in 1913, the federal government didn’t really have much spending power. At first, Congress didn’t know what to do with it.

Much like like giving a toddler a book of matches, sure, Congress could burn down the house with it, but it would take a while to figure out how. That’s why the idea of using tax dollars to create the FDIC to insure the bank accounts Bonnie & Clyde robbed, or even to fund an FBI to catch bank robbers, took a while to catch on. Government growth happened gradually.

At first, there was no federal spending on much of anything at all other than necessities. Because of the gold standard, the government couldn’t just print money out of nowhere. If the government spent money, on a war for example, it had to raise taxes. Printing money out of nowhere would be more like giving a toddler a flame thrower. (And nobody could be that stupid.)

The first “Buster Keaton” healthcare loophole. Funny thing about health insurance, Dallas also happens to be the home of the first private health insurance. In 1929, Dallas’ Baylor Hospital began offering polices to teachers. Things stayed that way for a while. Then, all hell broke loose December 7, 1941.

During WWII, there was a shortage of workers, which would have resulted in “wage inflation,” because that’s how supply and demand works. The government couldn’t afford to raise taxes to pay inflated prices for workers because the government was the one paying the employers to build war materials (you can’t pay your bills by taxing yourself, that’s not how math works).

So, instead, the government “froze wages,” while carving out a loophole in the IRS rules, like Buster Keaton’s house, that allowed employers to offer fringe benefits, like healthcare, without those benefits being counted as “wages” which were of course frozen. It’s a head scratcher, but it worked. In large part, because people with jobs are the most healthy people, who don’t usually need a lot of care.

And that’s how employers got into the health insurance business. (The elderly, that’s another story.)

The second Buster Keaton loophole. Until 1965 there was no health insurance for people without jobs, meaning the elderly or disabled. The AMA’s doctor members were adamantly opposed to government provided health care, on the grounds that the government would micromanage every aspect of a physician’s practice. So, in a nutshell, doctor-backed conservatives didn’t want Medicare, and liberals, like President Kennedy did. Congress was deadlocked.

But “dammit” (if it didn’t happen again in Dallas), President Kennedy was gunned down in 1963. Which led Congress, motivated more by public sympathy than sense, to pass Kennedy’s hoped for Medicare and Medicaid in 1965.

In order to appease the AMA, the first section of the statute, 42 USC 1395, contains the government promise of “non-interference” with practice of medicine. To pass Medicare, Congress had to promise Doctors and hospitals they could charge anything they wanted and the government paid them. (Besides, people smoked like chimneys back then, who’s gonna live much past 65 anyway?)

Well, it only took until the early 1970’s, for all this government spending to bring he house down on the US Treasury. What to do? Enter Buster Keaton loophole number two: We’ll just print money out of nowhere, like stupid people. The Nixon administration realized we could promise anything and still pay our bills, if we just charged everything on a credit card, without regard to having tax-payer gold in the bank to back it up.

The Gold Standard: Giving a toddler a “flame thrower. If income taxes and spending were like giving a toddler a match, getting Congress off the gold standard was like giving flame thrower to a toddler. Once it figures out how to use it, you really don’t want to stand in its way.

Economics 101: If you flood a system with money, the price of everything will go up to a level known as “all the market will bear.” With Medicare blowing money left and right, inflation followed. How stupid are we? When George Bush (the 2nd) signed Medicare Part D into law in 2003, Congress forbade Medicare from negotiating volume discounts from big pharma. (Stop complaining. It’s not real tax-payer money anyway.)

But, this still doesn’t explain why we hate health insurance.

“A War of All Against All.” But there is a catch. While Medicare spending blew the roof off prices, employers can’t print money they don’t have, they aren’t the government. So they both hired private health insurance companies to ration care in the form of claims administrators who manage care through PPO’s and HMO’s (they force providers to provide care for less pay), which only helped so much.

The only way for the government and employers to make ends meet, is if insurance companies “fudge” about coverage. Which is why we hate them. When we are issued a health insurance card, it comes only with a “promise” that our health insurance company “might” pay the bill if there is money in the bank after insurance companies pay themselves. And in the case of UHC, it appears claims were being denied at at rate of 32 percent. Twice the national average. That’s why we hate them.

Notice too, the trick is to direct this hate by getting someone else to do the dirty work. The public hates the insurance company, not the government or the employer. That’s why they do it this way.

Authors Bartlett and Steele describe our system in their book Critical Condition– How Health Care in America Became Big Business and Bad Medicine, New York: Doubleday (2004.)

“The American Healthcare System is a war of all against all, where insurers cheat patients, patients cheat doctors; doctors cheat insurance and everybody cheats the government.”

The final Buster Keaton loophole. But, you aren’t necessarily expected to be stupid enough pay your medical debt. There is a loophole: Bankruptcy. In America, 66.6 percent of bankruptcies are due to medical debt, 78 percent of these people had health insurance that didn’t do what it promised. Or, when you die, the debt dies with you. After all, that’s what would happen if there were no hole at all, in the house that fell on Buster Keaton.

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

 

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“Deny,” “Defend” and “Depose”

–Words scribbled by the hitman on three shell casings

 

Oxford, Mississippi. The Ole Miss Law School boasts 2 ½ graduates in descending order of importance: New York Times best-selling author John Grisham, my daughter, who is half-way to earning her juris doctorate, which is one reason I work so hard, and then there’s me. I just write about stuff.

While visiting my daughter last fall, I marveled at the glass book case in the Ole Miss law library. I didn’t realize John Grisham had written 74 books. These include 47 bestselling thrillers, including The Firm, which launched Tom Cruise’s career as an action star in 1993.

As with most John Grisham thrillers, The Firm is a tale of a seedy underworld, corporate greed, computer hacking, along with billing irregularities which were uncovered by Tom Cruise’s hacking of company computers, a hit man, and the Department of Justice, all of whom engage in a protracted cat-and-mouse chase through and beyond South Florida.

A work of pure fiction, The Firm is heart-pounding fun. At least it is supposed to be fiction.

Then, yesterday morning the story broke about the Death of Brian Thompson, the CEO of United Healthcare. UHC is the nation’s largest health insurance company. Thomson was gunned down on the streets of Manhattan by a hitman. This is enough of a “holy crap” moment, but then even more details emerged which make me wonder if the plot in The Firm has sprung to life?

According to news reports, a masked hitman appears to have targeted Thompson in a premeditated attack. One of the only clues to the motive are three bullet casings with the cryptic words “deny,” “defend” and “depose” scribbled on them.

This is a corruption (intentional or not), of the more common phrase, “Deny, Delay, Defend,” which is also the title of a 2010 book by Jay Feinman, subtitled, Why Insurance Companies Don’t Pay Claims and What You Can Do About It.

Speculation immediately focused on reports that UHC has a health care claims denial rate twice the national average, and twice that of its most comparable competitor, Blue Cross Blue Shield. Could it have been a disgruntled patient or family member? Or, is that what the hitman wants us to think?

Thompson was being investigated by the U.S. Department of Justice at the time of his murder and was possibly set to testify before Congress. But the plot gets even thicker, as word emerged of a class action lawsuit which accuses Thompson and three other UHC Group executives of insider trading. Allegedly, “the UnitedHealth insiders sold more than $120 million of their personally held UnitedHealth shares,” according to a suit filed by the City of Hollywood Firefighters’ Pension Fund.

At least the pension fund involvement is not unusual. (I think.) Firefighters and other public pension funds are often big investors in insurance stock, that’s how pensions meet obligations (which is one of the reasons insurance companies seem to be allowed to get away with things mere mortals cannot). When things go badly, pension funds are often plaintiffs in shareholder suits, which usually allege the actions of executives caused the price of a pension’s stock to decline.

What is unusual in the case of Thompson, is that he is accused of using insider knowledge to sell his personal UHC stock, which sharply declined after news broke of a DOJ investigation into a computer hacking event, which erased $25 billion in shareholder value. Could that be a motive?

The DOJ has also been investigating UHC to determine if it was operating a monopoly in violation of federal law in certain acquisitions of competing businesses. This lawsuit was joined in a lawsuit by the attorneys general of Maryland, Illinois, New Jersey and New York. Apparently, from what I have been able to read online, all of the UHC investigations may be frustrated by the death of Thompson.

Meanwhile, the hitman is still at large, possibly on the run in Florida. Taking into account the murder, victims of corporate greed, corruption, computer hacking, secret DOJ investigations, hitmen, chases through South Florida; these are all eerily similar to the plot of The Firm, which isn’t supposed to be real.

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

“Can I refill your eggnog, get you anything to eat? Drive you out to the middle of nowhere and leave you for dead?”
–National Lampoon’s Christmas Vacation

It is Thanksgiving again and you get to spend time with your family! If that makes your brain hurt, here’s at least something to be thankful for: “Pain” means you are on the right side of the dirt. You are “on it,” and not “in it.” If you’ve got a family, chances are, you have some “Cluster B’s,” which is what psychologists say to each other as an inside joke. It’s code for “difficult” people. (And you are just going to have to deal with it.)

When I was a kid in the 70’s, Thanksgiving meant travelling 500 miles (and 100 years back in time) to my grandparent’s tobacco farm in Cumberland Gap, Tennessee. We piled 17 people in a four-room shack (not “four bedrooms,” but four “rooms”). It was freezing in the mountains. They had no indoor bathroom and no central heat. A 5-ton pile of coal in the front yard fueled a single pot belly heater in just the main room. At night, we piled under a half-dozen patchwork blankets to keep warm.

But mostly, I remember all the livestock on the farm was actively trying to kill us. There were bulls, mules and even Banty roosters. Probably because we children were irritating them, but I just remember running away a lot.

These days, Thanksgiving is more like National Lampoon’s Christmas Vacation. It is “a death of a thousand cuts.” It is true, I always find when I am visiting someone else’s family, it is only close family members who understand why they annoy each other so much. From the outside looking in, it doesn’t seem that bad. This is because it is the little annoyances, repeated over time, that will make you insane.

How to survive this Thanksgiving.

1. “Avoid and Evade.” Like running from a Banty rooster, It’s not always about you. Those dodgy little bastards just woke up “ticked.” The hard part about being human is that we are at the center of our own universes. (If you look to the left, half of it is that way. To the right, is the other half.) Plus, we are the only ones who know what it is like to be “us.” It is really weird, that we somehow just got planted in the middle of where we happen to be. And at Thanksgiving, where we happen to be, is in the middle of “kooks” that we didn’t pick. They just happen to be related to us for some reason. And some are just unpleasant.

When people do things that are upsetting, it isn’t personal. Think of your mission, not to “engage the enemy,” but to “avoid and evade.”

2. Tune into the “higher frequency.” I have this “woo woo” hippie-chick friend, who says some of the smartest things I have ever heard any human say, one of which is that there are two “frequencies,” metaphorically, a “high” one and a “low” one. They are always out there, but the one you tune into is the one that comes in loud and clear. You have to be aware that the low frequency is always calling for your attention. But you get to choose to ignore it. Which is the same as choosing not to be in agony. Find the higher frequency, which is a way of saying, “find your happy place.”

3. Treat everyone like they are hurting. Zig Ziglar, the self-help pioneer used to tell audiences, “treat everyone like they are hurting, and nine times out of ten, you will be treating them the right way.” If your version of “Aunt Edna” in the first Vacation movie is super annoying, consider that when you are in your 70s and 80s, it is really painful just to be alive. Hell, at 62 I wake up with injuries I didn’t have when I went to bed.

Sometimes, being grumpy is the “default,” because they can’t go around saying “ouch” all the time.

4. Try a little empathy. Back when people made sense, (circa. 2019), we used to be able to say there were differences between men and women, and we wouldn’t get a pie in the face. One big difference was in how we approach problems. The rule was that wives want to strangle their husbands most of the time, because when wives told husband’s their problems, husbands would tell them how to “fix it.” Apparently, they want us to understand how they “feel.” Maybe repeat back to them, “that must have made you feel terrible.” And somehow, this helps. Men don’t understand this, but that’s not the point. It is about “validation.”

If one of your family members keeps talking about “walking into an airplane propeller, then expresses how their head keeps hurting,” they might not be asking you to fix their problem. They want you to understand how they feel about it. Don’t get drawn into telling them they are wrong.

5. Don’t taunt the green monster. The reason Cain slew Able in Genesis was because one was a farmer and one a shepherd. God found favor in the offering of Able and Cain became envious that Able was God’s favorite. What this means, is that from the beginning of time, some people are just lucky, or work harder and smarter. People aren’t always happy hearing about the good fortune others have to share. It isn’t right, but it is “real.” And at Thanksgiving, this is an “airplane propellor” just waiting to be walked into. You might try walking around it, just to keep the peace.

6. If you still have a “Dementor,” and all else fails go “gray rock.” Harry Potter has these wraiths called “Dementors” who try to suck your soul out through your face. When you get trapped with one of these, try going “gray rock.” In the YouTube world of videos on surviving toxic or narcissistic people, a new breed of life coaches has popped up, who describe the technique of going “gray rock.”

Gray Rock Method. “The gray rock method is a technique used to deal with toxic people by making yourself uninteresting and unresponsive. Like a gray rock. The goal of the gray rock method is to make the other person lose interest in you and move on to another. It is like burglar bars. It doesn’t stop crime, it just keeps you from being the victim.

How it works You make yourself boring and unresponsive by:

· Minimizing emotional reactions
· Avoiding arguments or debates
· Keeping interactions brief and neutral
· Limiting eye contact
· Keeping your facial expressions neutral
· Staying calm, cool, and collected
· Limiting your responses to “yes” and “no”
· Using canned responses

Practice makes perfect! The whole goal here is to survive Thanksgiving, and if it doesn’t kill you, you will get another chance to practice. It is only 33 days until Christmas.

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

As you can tell, I love talking about health law & litigation issues, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.

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Too many people spend money they earned..to buy things they don’t want..to impress people that they don’t like. –Will Rogers

Money is power. The people who say, “money is power,” have no idea how right they are. Cash flows like an electric current, which we call “power” (as in “the power’s off.”) We even use the same slang “juice,” to refer to both electric energy and the power to influence people in “charge” (we call them that, because they have power.) I could play with words all day, but I have bigger concerns. I have kids in college and I am trying to teach them well.

Having represented wealthy people and poor people, the first thing I would tell my kids, is it sucks to be poor. If you don’t believe me, just let the world find out you don’t have enough money to make ends meet. If you don’t starve, you at least get hit with all kinds of penalties, like late fees and higher interest. If you get arrested, you stay in jail, rather than getting bailed out. In short, without “juice,” you end up constantly getting your ass kicked by life.

Everyone can’t be wealthy, but it is possible at least, “not to be poor.” My first thought is that “not being poor” is the same as having “security,” and so not spending all you make, should be “job one” which any kid should learn.

Have you ever thought about how electricity works? No one does. Like money, it is all around us, but not one in a thousand can tell you what it is and how it works. Cash “flows” like electricity and it has similar “utility.” That’s why we call the electric bill a “utility bill.” But cash you earn will flow straight through your fingers, if you don’t take charge and make it behave. Which is exactly how electricity works.

I may have this a little wrong, but if you want to make electricity, all you have to do is spin a magnet close to a coil of copper wire. If you want to make a lot of it, get a really big magnet and a lot of wire. The electrons in the copper are being pushed one direction by the “north” pole of the spinning magnet, then pulled back by the “south” pole. This creates an A/C alternating current of electrons flowing through the wire, which is why it is called “electricity.”

But this “back and forth” alternating current of power flow doesn’t just end up sitting in your electrical socket waiting to be used. You either must use electricity when it is created, or it must return to its source to be depleted, which completes the electrical circuit. If there isn’t a circuit, it won’t flow.

There is one exception to the “use it or lose it” rule. You can store energy, at least for a while, in a battery. (You can even be a “battery,” if you’ve ever rubbed your shoes across a carpet in winter, then touched a door knob, then you know.) Which illustrates, energy stored in a battery is not a permanent, natural state, and so stored energy is always trying to get out, to dissipate, to leave you, and find some way to return to the universe.

What the hell does electrons have to do with teaching kids about money? Money is always trying to leave. Being “destitute” is more or less the natural state. You have to go out and spin the wheel to make cash flow. Then you have a different problem, how to make it behave?

“Wealth” is different than “income.” Wealth is cash flow that you don’t use immediately. Like a battery, it is a store of power you didn’t use, which also makes wealth largely invisible. There is a difference between acting rich and being rich. If kids use their money as fast as they make it, they might light up incandescently, but only for a short time. If they buy expensive meals, people can see how well they are doing, but they deplete wealth. You literally “can’t have your cake and eat it too.”

At least not all of it. But you could still eat some of it and have some of it left over. That is generally how you avoid being poor.

This is also the irony we can see in the song in Fiddler on the Roof “If I were a rich man.” (Tevye gleefully would blow it all ostentatiously. And then he wouldn’t be a rich man very long.) Which is the lesson here. When we spend our cash flow, we might feel “elated” like Tevye, but it doesn’t last. When you don’t spend all of your cash flow, you feel more “secure.” (I think that is why they call investments “securities.”) Which brings me to my final point on “how” to teach kids not to be poor.

There are two kinds of people, “spenders” and “savers.” Savers just place a higher value on security, often at the expense of having any fun at all. This is what Oscar Wilde had in mind when he said, “Show me a man who lives within his means, and I will show you a man that lacks imagination.”

I would tell my kids, then, there are two ways to live a “poor” life. I have represented people who saved every penny, amassed a fortune, and I don’t think they ever had a day of fun in their whole lives. Most of the financial advice I read, suggests that you should strive to save a certain percentage of your income, and enjoy your life with the rest. If you can’t do that, cut your expenses. Save “something.” And don’t touch it.

If you do not have a natural “saver’s” mindset, this is a perfect time to be a phony and “fake it until you make it.” Act like a saver until you are one. If you don’t have three to six months of expenses in savings, you are “poor.” Stop acting rich, until you are not poor. And that’s a good enough definition of what “wealth” is: having some “security and peace of mind.” It certainly won’t hurt, if you give “catastrophe” fewer chances to find you.

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

 

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“Never interrupt an opponent while he is in the middle of making a mistake.”

—Napoleon Bonaparte (1769-1821)

 

Two of the most important things a lawyer can convey to a client — (1) if you want to win a lawsuit, it doesn’t matter what happened in the “real world,” unless you can get it into evidence (2) if you want to avoid a lawsuit, don’t go around blasting emails, Facebook entries, or leaving an “evidence trail,” that will get you sued.

But, assuming the client didn’t get the second part (at least not in time to avoid getting sued), you still have to get “what happened” into evidence. I have two tips for lawyers that can be a total “game changer.” First let’s describe the problem.

Professor Irving Younger taught me 40 years ago when I was in law school, it doesn’t matter what happened in the real world. You have the get it into the court’s record. The court’s record is like a complete vacuum in outer space. Nothing is in the court’s record, until the lawyers put it there, using the rules of evidence. Which can be a kind of game.

Playing Hardball. All “causes of action” have “elements,” which usually break down into four groups: (1) duty (2) breach of duty (3) causation and (4) damages. Think of these four as if they are bases on a baseball diamond. The objective is to get “home.” And in this illustration “home” means getting your case “to the jury.”

To get “home,” you must get to “first base,” you have got to get some evidence in the court’s record of “duty.” This usually means the person being sued “did something” that gives rise to a duty to do it properly. To get to “second base,” there must be some evidence of “breach,” and so on with the third element of “causation” and the fourth element of “damages.”

This is also called having a “legally sufficient” case to get to the jury. This evidence doesn’t have to be very believable, there just must be “some evidence” to get to the jury. There are three problems make this harder for plaintiffs (or defendants who countersue.) And two easy fixes.

First problem. Your opponent is playing hardball. They are trying to “strike you out,” “throw you out” or “pick you off” base. Why? Because the defending party only has to eliminate any one element to keep the plaintiff from getting “home,” and thus, keep the case from getting the jury. That’s what summary judgments and directed verdicts are for.

Second problem. Depending upon the jurisdiction, courts may have determined that evidence of “A, B &C” are still “no evidence” of an element. Meaning, you have to know whether you can get “home” to a jury with the evidence you have. So, for example:

Facts: Suppose a home health agency fails to do a criminal background check on a home health worker, who then is placed in a plaintiff’s home who steals items from the home.

Here the plaintiff can practically “walk” to first and second base. “Duty” is supplied by law, the defendant “did something” by offering services. “Breach of duty” is supplied by evidence of a failure to exercise any care in doing a background check. “Damages” are also fairly clear.

But what about “third base.” Did the breach of duty “cause” the damages. Suppose a later background check turns up, that there were no prior convictions or complaints that a background check would have uncovered. Did the breach cause the damage? Was the crime a superseding cause? You have to know what the law is in a given jurisdiction. These nuances in the law might not be “intuitive.” That’s why we look them up.

Worse, frequently, the opponent will wait until the last minute to file a brief with their version of the law and why they should win. The tactic is designed so that you don’t have time to check their citations. That’s a problem.

Third problem. Just “any old witness” cannot get on the witness stand and attempt to offer evidence of “what they think,” or maybe “what they heard” someone else say about an element. This is called a “lack of foundation” or “improper predicate.” So, in the example, you might want to introduce evidence of a “lack of any record” of a crime. Is that hearsay? Is there a workaround? How do you do that?

“Predicates” are rules of evidence, some might call them, “magic incantations,” like the Medieval trial by ordeal, where the accused was required to recite a complicated sentence from the Bible. If they got it wrong, they lost. Same thing with “predicates.”

If you say the right words, the evidence comes in. Fail, and you lose.

Easy Fix No. 1: AI can help. In the November 2024 issue of the Dallas Bar Association Headnotes monthly newsletter, Alexandra Wahl, of Wick Phillips writes about the practical uses of emerging AI technology.

Nowadays, you can check the law in your jurisdiction using West Law QuickCheck or Bloomberg Law’s “Brief Analyzer,” to drop your brief (or opposing counsel’s) into the AI program, and it will analyze the law and tell you if you or you opponent got the law correctly, or if they left out important cases. This takes seconds. So if you get that last minute brief from you opponent, this is your workaround.

Note: This also means that clients can do the same thing. At any rate, lawyers still have to read the cases and double check the results; and you can see where this might eventually become the standard of care in keeping with ethics rules that require lawyers to keep up with technology.

Easy Fix No. 2: Never fail with a “predicate.” There is a 571- page State Bar of Texas Manual in ebook form Entitled “Predicates,” updated through 2024, that costs $199.00. Anyone with an internet connection can own a copy in 6 minutes. You don’t have to be a member of anything. Just Google it, and click “add to cart.” And “poof,” you never have to worry about getting “picked off base” for “improper predicates” again.

Want to get “airplane records” into evidence? The predicate is on page 20. A “chart”? That’s on page 101. “Facebook” entries? That’s on page 213. An “oral contract?” That’s page 345. “Social media page printout?” That’s page 455. “Voice identification.?” That’s page 529.

Although it is produced by The Family Law Section of the State Bar of Texas, predicates work the same for any case. Just Google “Predicates Manual 6.0” and “Texas” and you will find it.

Now, go “play ball!”

By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com

“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

 

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Only a fool would talk about politics in a legal blog a week before an election. Confidentially, one of the best things about being a solo practitioner—I can’t be fired for saying what I honestly think. I don’t have any particular leaning, one way or the other. I like some things about Republicans and some things about Democrats. One week from an election, my main thought is, “Please, make it stop, I wanna get off.”

But, apparently, according to the ads, I am to “hate vote” for one or the other. (Even after I did, the Text messages didn’t stop.)

I don’t’ think Republicans are the heartless capitalists of the Gilded Era whom Democrats claim them to be. They no longer send children to work 18-hour days, in locked factories (at least not here.) Democrats aren’t the Marxists of the old Soviet Union who murdered any Kulak peasant rich enough to own a cow, and then murdered anyone who told the truth, “this isn’t really doing any good.”

Speaking Truth to Power. Perhaps the most famous painting of a “fool,” is “Stanczyk,” a jester in the court of King Sigismund I, the Old of Poland (1506-1548). Stanczyk was known for being able to tell the king the truth without being punished. The painting, was completed in 1862 by Matejko, and depicts Stanczyk in a red outfit, sitting dejectedly in a darkened room outside a ballroom. The jester has a “1000-yard stare” on his face, because beside him on a table is a newspaper he has just read (most likely the King’s newspaper that Stanczyk just happened to find, during a break in performances).

The paper contains the news that Stanczyk’s home, Smolensk, has fallen to Russia. It is a tragic scene, made more so, because just to his right and through a doorway, we can see the court of the King and Queen, having a ball (literally), unaffected by the news that has stricken poor Stanczyk so sorrowfully.

I think most of affecting thing about “Stanczyk,” at least for Americans, is that is so hard to tell in a country as fortunate as we are, “when is it okay to be happy, even though there is no end to news that somebody, somewhere is suffering?”

“John Frum and the Cargo Cult.” That won’t stop people from making a religion out of politics. One thing is for sure, you can make a religion out of anything. We watched this unfold in real time, beginning in the 1930s, in an island known then as “New Hebrides,” in the South Pacific.

Americans made a base of as many as 50,000 service men and women in advance of WWII. The islanders watched as cargo parachuted from the sky, with food, clothes and other goodies, in crates marked “United States of America.” So, the islanders formed a religious belief, that leaders quickly turned into a church, which preached that there was a deity named “John Frum” (as in “John from America”) who was magically causing goodies to fall from the sky.

The Americans tried to tell the islanders that, “we are from America, there is no ‘John Frum.’” But the islanders were suspicious, “that is exactly what Americans want you to believe.” Which is sort of a “Pascal’s Wager.” (If you believe and you are wrong, you are not any worse off, but if you are right, you get goodies.)

After Americans departed in WWI, the “Cargo Cult of John Frum” continued to exist in the Hebrides, at least until the decade of the 2000’s. Still believing what their leaders had told them, that “Santa Jesus” John Frum would return from America, they built landing strips on the island, and sat and waited.

Politicizing the bell curve. I have a theory that American politics exist on a bell curve. Most of the people are like me, in the middle, while towards the left end and the right end, there are ever-increasing “cargo cults,” who exist in ever decreasing numbers the farther away they are from the middle. They are sure noisy at the ends, but there aren’t really statistically, that many of them. Until election time, and then, the statistical ends ends are all that seem to get attention, on matters I wasn’t really worried about before.

I get that same feeling at Southwest Airlines during the boarding process. All the “rich people,” and people suffering some “hardship,” get to board first and everyone else that isn’t special in any way, can just “suck it.”

Even though I know there aren’t that many of them (and we all are get to fly at half the speed of sound, to a destination that pioneers literally had to walk to reach), the ones that get to board first still give me “compassion fatigue”— to the point that I am looking at them side-eyed, “you don’t really need that wheelchair.” (Which makes me feel like a bad person.)

Please make it stop!