Barrister's blog

More on Elder Scams and Cons

My readers know that I consistently write regarding my concerns about elder investment scams. In one of a number of cases we're handling, I'm close to the end in a case in which I have recovered over 800k for a Cape elder in her 80's that was victimized.  She was sold unsecured promissory notes with promised yields in excess of 12%. Over 4million has been paid out to other victims of this scam.

I credit Michelle Singletary of the Washington Post for regularly writing about these schemes and scams. She writes this week about a Ponzi type scheme in Oklahoma that defrauded 80 investors to the tune of over 6million. Many were elderly and were sold notes backed by high interest loans with promised returns of between 6-20%.

Singletary's article refers to a study done by "The Investment Protection Trust" that estimated that 1 out of every 5 citizens over 65 have been victimized by a financial swindle! Another recent poll found that the primary expoiters were family, caregivers and then scam artists.

In my review of these cases, I see some patterns, some of which are also mentioned in the article:

1) "I'm lonely". This comment alone makes the elder a prime target.

2) "I was told that I had to give my  son/daughter a power of attorney. But now, I don't know what's going on".

3) "My caregiver has told me not to worry about anything. He/she is taking care of everything". Also, always watch out for gifts to caregivers.

4) A parent not wanting to show a child their mail. This is always cause for concern.

5) In two recent cases I've had, the scam occured after a spouse passed away.

More to come on this topic soon.




Nursing Homes, Death by Steak Fries and Expert Witnesses

My readers know that I have written frequently about what can occur behind the walls of the finest nursing homes. Two cases reported in this week's Massachusetts Lawyers Weekly continue this thread.

The first case involves a case that settled with the family of a decedent for $1.25 million. Apparently, the resident, who was on a "soft" diet was left alone with steak fries. She started choking.Here's what happened next:

a) Nurse 1 didn't perform the Heimlich because she didn't want to aggravate a back injury;

b) Nurse 2 didn't administer any aid, but went to the chart to see if a Do Not Resuscitate Order had been given;

c) The staff then attempted to use a suction machine, which was found to be inoperable;

d) The next nurse administered the Heimlich and the food was expelled, but the resident was now pulseless;

e) The staff went to get the defibrillator that was supposed to be outside the resident's room, but they couldn't find it.

The resident died. Yes; this is a true story.

The second case involves a trial in which the resident broke two bones as the result of a fall. The trial judge granted a "directed verdict" for the nursing home because the plaintiff did not introduce expert testimony regarding the "cause" of the injuries. Now, in the vast majority of cases involving alleged medical negligence, expert testimony is required to prove the applicable standard of care, breach of the standard of care, and the cause of the injuries. However, an exception to this requirement exists when the breach and injury is subject to an "obvious, commonsense explanation". In this case, the appeals court noted that the plaintiff was not obligated to prove that her fall was the sole cause of her injury (she had preexisting osteoporosis), but only that the fall was a "substantial" contributing factor. The court further noted that the case did not require "exotic medical theories" to prove that "the aide allowing her to fall caused her injuries". In fact, the decision (quite correctly) pointed out that the fragility of the plaintiff increased the chance that a fall would cause those same injuries. A wonderful "commonsense" decision by the appeals court! I have stated many times, nursing homes are needed, and in many if not most cases, provide excellent care. But, the family must pay attention to the quality of care because bad, and often deadly things, do happen.



Will You Have to Pay Your Parents Nursing Home Bills? [Bruce Bierhans]

Don't get me wrong; I think that Nursing Homes should be able to make money just like any other business. As my readers know, I also think they should be responsible when they drop a resident on their heads and cause injury or death. But, that's for another blog. On the other hand, many states are making it much easier for nursing homes to get paid by the children of nursing home residents.

In this weekends Wall Street Journal, author Kelly Greene discussed recent application of the Pennsylvania "filial-support" law. Twenty nine states have such laws, including Massachusetts. Basically, the statutes  state that where the parent is indigent and the child has the ability to pay, the nursing home can sue the child to pay the bill. In a recent Pennsylvania case, the court imposed liability on the part of a child even where there was no fault on the part of the child in creating the debt.

An additional basis for the incurring of debt on the part of the child may be in the Admission Agreement itself. These agreements must be carefully read, as they may impose obligations on the part of a child. I have defended a case where the nursing home attempted to impose liability simply because the child did not engage in due dilgence in producing all financial records of the parents. In addition, nursing homes will now regularly attack what many elder lawyers consider legitimate estate planning measures, including the transfer of real estate to children.

This is an evolving area, but I believe it is proceeding on a track that clearly favors the nursing homes, and penalizes children, even where they have acted innocently. Of course, careful planning is one early as possible. You should consult with specialists in elder law as soon as is practical. Careful review of all documents you are given to sign is another. Maintenance of good financial records for your parents is also essential. Remember, such an unexpected obligation could wipe out your own nestegg.

Whether or not you philosophically believe that such liability is reasonable or not is largely irrelevant. This is a clear trend, and there is no sign it will change in the near future.

P.S: A number of consecutive trials have kept me off the blog for a while. I hope to post with more regularity going forward. Enjoy our Cape Cod summer!


Cape Elder Fraud Victims...Again [Bruce Bierhans]

I have written on this topic many times. But, it seems that it cannot be revisited enough.

This week, the CCTimes reported on the arrest of a Harwich home health aide that allegedly stole about $23,000 from a 97 year old woman for whom she provided care.

Since we have been handling these cases, they have involved scams or thefts being perpertrated by "trusted" financial advisers, nursing home workers, "friends" or family friends that befriended and then took advantage of elders, insurance salespersons and home health aides.

It appears unfortunate that in the case just reported, the "aide" may have been self employed. This means that there is likely no employer or insurance company potentially liable that could be a source of recovery for the woman's funds. I have no idea what the factors were that resulted in the hiring of a "self employed" home aide, but suffice it to say, these people should never be hired without checking references; dealing with a well respected company, or finding out if they are bonded or insured.

Children of these folks also bear some responsibility. You must monitor your parent's finances, try to keep track of who they are hiring and who their friends are, be on the lookout for unusual behavior of any kind...and keep in touch with some frequency! Disclosure; my mother says I don't speak with her enough! a lawyer as soon as you become suspicious about anything. A lawyer with experience in this are could potentially avert a significant loss.




A New Challenge at WHAT

Announcing Bruce Bierhans as President, CEO and Board Co-Chair


Bierhans is local attorney and consummate community leader

Bruce A. Bierhans, longtime Wellfleetian attorney and community advocate, is the new president and CEO of the Wellfleet Harbor Actors Theater and co-chair of its board of directors. He was recruited to help guide the former seasonal theater company as it evolves into a year-round performing arts center.

“Bruce brings critical leadership and local knowledge to WHAT,” said co-chair John Dubinsky. “The majority of our board does not live fulltime on the Cape. It’s critical that we recruit talented community members like Bruce, who care deeply about WHAT and appreciate how the Wellfleet Harbor Actors Theater contributes year-round to our region’s cultural identity and economic development.”

Bierhans, who has law offices in Hyannis and Wellfleet, currently is President and Chairman of Outer Cape Health Services and serves on the board of Preservation Hall, Inc. He formerly served as board president for the Payomet Center for the Performing Arts. Bierhans serves proudly as Wellfleet town moderator.

“I am very honored to lead WHAT’s board at this very exciting time.” said Bierhans. “Not only must we nourish its quarter-century, iconic status as an innovative theater, but we must expand WHAT’s year-round offerings to represent the diverse tastes of our many audiences.”

WHAT’s expansion is driven by the $6-million, year-round Julie Harris Stage, which opened five years ago to complement the smaller and seasonal Harbor Stage. In addition to simulcasts of the Metropolitan Opera and London’s National Theater, the Julie Harris hosts productions ranging from the Cape Cod Symphony Sounds to Cinema WHAT. This month, it presents A Raisin in the Sun in collaboration with Counter Productions.

“Those who know me understand that I am committed to do everything I can to serve Wellfleet and surrounding towns,” said Bierhans. “WHAT is an integral part of our community fabric and needs local leadership and direction. I have been asked to provide that leadership and am eager to serve.”

Bierhans not only brings business and legal expertise to his board role, but also a background in theater that dates back to the Fisherman’s Players in Wellfleet and Eastham in the early 1970s. “I know what it is to run a business but also have the perspective of a performer.”

“The Players were cutting-edge theater before WHAT was a twinkle in anyone’s eye,” he recalled. “One can engage people and also entertain them. My vision is to ensure that WHAT remains innovative and cutting edge. However, we must also diversify programming so that we put people in the seats.”

“It may not sound exciting, but we have a state-of the-art building to pay for,” Bierhans emphasized. “So, we must combine a package of theater, music and the arts, which culminates in a true performing arts center. I also want WHAT to be there as a venue that contributes to our community. My neighbors and local colleagues love WHAT’s heritage, and it must belong to all of us.”

Bierhans and Dubinsky, along with David Willard, an executive of Cape Cod Five Cents Savings Bank, are leading an effort to recruit new members like Mark Watson, who recently joined the board. Watson, a Harwich resident, is founder and principal of Keel Asset Management, LLC which provides investment advice and non-profit consulting.

“In recruiting new board members, we also must mobilize key committees, especially those focused on fundraising,” said Bierhans. “Tickets only represent half of the money needed to operate WHAT,” he noted.Bierhans brings significant experience leading or serving on numerous local non-profits, including two that have grown significantly – Outer Cape Health Services and Preservation Hall. “I have tried to do whatever I could do to make those organizations successful. I do what I think is best for the organization. Of course, the people you have around you and their commitment always are a key to success. Both Preservation Hall and Outer Cape Health Services are blessed with talented and committed people. ” 

Among those at WHAT is Mark Hough, the newly appointed executive director. “Bruce’s arrival at WHAT is exciting news. It is absolutely necessary for staff to have a guiding local light. He brings a unique combination of theatrical experience, business and legal expertise and a deep community network – all critical assets for WHAT to achieve its goals.”

Bierhans also will emphasize partnerships among other cultural groups and the community at large – from schools to businesses to non-profit associations.

“I am a strong believer in collaboration,” he said. “I hope to lead WHAT into collaboration with community, cultural and entertainment organizations on all levels. We just concluded a highly successful fall series with the Cape Cod Symphony Orchestra, and we have plans for a spring series. In addition more than 200 school children will be at WHAT to see A Raisin in the Sun.

“I would love to see WHAT work with Preservation Hall and Payomet; I’d also like to see us become more involved with other theaters regionally and do more events for community benefit.”

Bierhans graduated Suffolk Law School in 1982 and practiced for many years in Boston before moving his practice to Cape Cod in 2000. He specializes in business and trial law. His wife Nancy is the firm’s office manager.

Cape Parents: Are You Liable for Your Live In Childs' "Beer Party"?

Well...the economy is lousy, and your children are living at home into their 20's (thirties even?).  When they have a party at home where alcohol is served, are you liable if someone leaves the party and is injured, or injures or kills another? A recent Superior Court decision has limited potential liability in some respects, but may have enlarged it in others.

As reported in Massachusetts Lawyers Weekly, in Ryan v. Jones, Judge Gary V. Inge ruled that a parent that was out of state when her 26 year old daughter hosted a BYOB party at their home, could not be held liable under a negligence or social host theory. But, the judge also ruled that there may be liability when a social host exercises "control" over the alcohol, whether the host purchases the alcohol or not.

The defendants lived together in Billerica. When her mother was away in Maine, the daughter invited friends over for a BYOB party. When mom left, she took some wine with her, but left behind a bottle of vodka. The daughter bought a 6 or 12 pack of beer and told her friends to bring their own. Plaintiff Ryan was drinking at home when he received the invite. When he arrived, he saw guests adding the vodka to their drinks, even adding Klonopin to the drinks.  An argument ensued between Ryan and another guest, and Ryan was struck in the eye with a beer bottle and was hit in the mouth. His eye injury required surgery. Ryan sued the guest attacker, as well as mother and daughter.

The court ruled that  "For a social host to be liable for harm caused by a third party, there must be some type of control over the alcohol giving rise to a duty on the host's behalf. The mother had no such control over the alcohol that her adult daughter's friends drank, and, for this reason, she cannot be held liable for the plaintiff's injuries." The court further ruled that the daughter was in fact, the host, and could be held liable.

So: a) If parent buys the alcohol, they may be held liable; b) If parents don't buy the alcohol, but exercise "control" over the alcohol, they may be held liable; c) If parents bought the alcohol, but aren't at home, they're probably not liable...unless they know about the party and let it go on, particularly if minors might be present??

Best advice: Don't let the kids have the party.




Community Health Centers DO Work!!!!

One of the great things about being an experienced lawyer is that organizations in your community ask you to become involved in activities that benefit the community. Over the years, I have truly been fortunate to have been able to help many local non profits in the arts and human services.

Perhaps my most challenging, as well as most rewarding experience has been that of serving as President and Chairman of Outer Cape Health Services for the past two years. During that time, we have experienced the redevelopment of our PTown facility, the renovation of our Wellfleet facility, the opening of a pharmacy in Wellfleet, opening of a new clinic in Harwich, and an expansion of all patient services. We have also enhanced our essential relationships with Beth Israel Deaconess (BIDMC) and Cape Cod Hospital, both of which have new, talented CEO's.

I often find that many people don't understand the full extent of services provided by CHC's to their respective  communities. Below is an excellent piece from today's Cape Cod Times, co authored by some health center CEO's, including our own Sally Deane.




Community health centers work

The following was submitted by Heidi Nelson, CEO of Duffy Health Center; Karen Gardner, CEO/executive director of the Community Health Center of Cape Cod; Sally Deane, CEO/executive director of Outer Cape Health Services; David Reidy, executive director of the Mid-Upper Cape Community Health Center and the Ellen Jones Community Dental Center; and Cynthia Mitchell, executive director of Island Health Care on Martha's Vineyard.

Patients receiving their annual check-ups at one of the Cape and Islands' five community health centers may be hundreds of miles from the halls of the U.S. Congress, but the way lawmakers decide the future of federal health care spending will likely have an immediate impact on their future.

Despite Sen. John Kerry's efforts, the recent failure of the deficit-cutting supercommittee means that once again lawmakers will be scrutinizing every federal program to stave off $1.2 trillion in automatic spending cuts that now have been triggered. This could include cuts to state Medicaid funds and cost-effective programs like community health centers.

Many residents who live in communities served by health centers are worried about what these changes will mean in tough economic times. They are low-income families, elderly or disabled Americans and children, many of whom depend on Medicaid as their source of affordable health coverage and their local community health center for access to primary and preventive health care.

On the Cape and Islands we serve more than 46,000 residents, providing nearly 200,000 visits each year. We have seen firsthand how health centers are a win across the board for patients, states, the federal government and communities. Community health centers are recognized as among the most successful federal health programs ever created, with thousands of studies documenting their quality care, ability to keep costs down for Medicaid and other insurers, and role in creating jobs in economically challenged communities.

Here in Massachusetts, health centers represent the largest primary care network in the state, serving nearly 800,000 people. Equally compelling, Massachusetts health centers care for 30 percent of the commonwealth's Medicaid patients at a cost of only 1.3 percent of total state Medicaid spending.

As the states and Congress grapple with how to mend the nation's health care system, we are proud of the fact that community health centers remain ahead of the curve, providing a time-tested, comprehensive approach to health care that saves money and improves health. According to a recent study by the George Washington University, health centers generate annual savings of $24 billion ($1,263 per person) as a result of reducing the rate of preventable hospitalizations, inpatient days and emergency room use across the health system. They also bring economic benefits to our communities, generating more than 10,000 jobs in Massachusetts and nearly 200,000 across the country.

Disruptive changes to Medicaid, as well as potential cuts to health centers, could not come at a worse time. Health centers are already stretching their budgets to care for more of the working poor, who are struggling to keep their jobs and health insurance, or have already lost one or both. What's more, harmful changes to Medicaid could also increase the costs borne by taxpayers as patients lose a regular source of primary care and turn to expensive emergency rooms as their only option for health care.

Likewise, Congress should be wary of deficit-cutting proposals that shift costs and provide more flexibility to states — but also run the risk of weakening the provision of basic medical care for which community health centers were created.

Yes, we must address the growing national debt as a nation. But now is the time to be thoughtful about investing our limited resources where they will do the most good. We cannot afford to break or endanger what is working well. Community health centers are proven local solutions for improving the health of millions of Americans while significantly reducing costs across our health system.

Isn't that the goal in the first place?

OUI's and Social Justice

A recent Boston Globe Spotlight report indicated that when defense lawyers try OUI cases before judges, rather than juries, the acquittal rate is over 85%. When tried before juries, the acquittal rate statewide is about 50%.

What does this tell us? Of course, as the article points out, there are acquittals that are unjustified, if not downright obscene in some cases. I have represented families of individuals that have been killed or severely injured as the result of drunk driving. As with all things, there is a likely reform needed here that  gives responsible judges the fact finding discretion they need, but does not handcuff them in making decisions.

I think the 50% jury acquittal rate also tells us something else. On many occasions, I have represented the wife or husband that went out to dinner, shared a bottle of wine, and were stopped on the way home. Depending upon weight, that individual may, or may not blow the .08 warranting per se intoxication in Massachusetts. Are all of these persons deserving of losing the thousands of dollars that accompany such a charge, along with the months of inconvenience; perhaps even the loss of a job? Have we criminalized the social cocktail or romantic evening out with our spouse or friends? I think people are troubled by this which is why the acquittal rate by juries still hovers around 50%. It's the"on any given day, that could be me" theory.

Another thought. In Massachusetts, for many years now, plaintiffs' in personal injury cases only have a 20% chance of winning at trial. In Barnstable County, it's closer to 10%. Are 9 out of every 10 cases lousy or frivilous cases? I'm aware of a couple of recent cases in Barnstable where plaintiffs hit in rear end collisions lost their cases. Should we reform our jury system to create a more level playing field for injured victims?

It is my hope that the Globe article does not create the hysteria that results in attempted reform that further criminalizes acceptable social behavior. That is not to say that the system does not need some fixing to insure safety on our roads from those that should not be driving. In politics these days, everyone seems to be on the far right or the far left. Whatever happened to a moderate approach? It will be interesting to watch this unfold.



Strippers, Golden Bananas, Independent Contractors and Employees

" "This drive now would take Mr. Winthrop (and his Puritan Founders) past the defendant's business establishment, named The Golden Banana" which promises on it's website "gorgeous totally nude dancers". Once he and his fellow Puritans got over their culture shock, the issue in this case would strike them as rather obvious: strippers dancing at a strip club are performing within the usual course of business of the club.... As such, under Massachusetts law, the strippers, a/k/a exotic dancers are employees".

Above are the words of Judge Welch, a fine judge that I have tried before, who sits mostly on the north shore.

The issue of employee or independent contractor comes across my desk almost daily. Statute (MGL ch. 149, Section 148B(a)) and case law now recognize the "three prong test":

a) is the worker free from the "control" of the employer

b) are the services performed "outside" of the employers usual course of business;

c) is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

All three prongs must be met to establish a worker as an independent contractor rather than an employee.

In the case, Judge Welch granted Summary Judgment on the issue of their classification as employees.

Wrongful designation of employee status can result in substantial penalties under the Massachusetts Wage Act. So...if you are an employer, Puritan or liberal free thinker, beware of what lawyers are now commonly referring to as the "strippers rule". You could be left with your pants down.



Yes; That Non Compete Is Enforceable (Maybe)

In this morning's WSJ there is an interesting piece regarding the enforcement of a Non Compete Agreement executed by an executive at Johnson & Johnson, that departed for Boston Scientific.  The parties agreed upon restrictions upon the employment of Michael Mahoney during the one year non compete period.

I have litigated and tried many non compete case over the years, most on behalf of employees. Thankfully, the non competes I have written on behalf of my employer clients have never had to be tested. The typical client comes in saying, "I signed it because I needed the job, and didn't think non competes were enforceable".

Well; as a general rule, they are enforceable. If the non compete is reasonable in scope,  geography and time , i.e restricts the employee from competing in the field in which he/she worked, the the area in which they worked, and for a reasonable period of time, the agreement will likely be enforced.The courts will also consider whether or not the non compete is necessary to protect the legitimate interests of the employer.

Can they be beat or modified. Yes; and I have done it many times. All contracts require that both parties fulfill their obligations in "good faith". So; if an employer changes the rules  in midstream, such as a job description, or the region in which an employee works, a court can decide not to enforce the non compete, or modify the non compete so that it is fair. If a court decides that the non compete goes further than is needed to protect the interests of the employer in it's confidential information or trade secrets, the agreement can be modified, or voided. If the employer breaches an agreement with the employee, the non compete can be modified or voided. Generally, the courts have broad discretion in these cases to insure that the agreements are fair.  

So; when you're ready to put pen to paper on that non compete clause in your employment contract, STOP and consult with counsel. You're potentially giving up your right to work!