How to Correct False Medical Records

Doctor standing in front of patient in bed.

We get a surprising number of calls concerning medical records, and the false information contained therein. Often it arises in the context of a patient who is prescribed pain killers. Doctors, understandably, are sensitive to over-prescribing opioids, both out of concern for the patient, and because the doctor can get in trouble for being too loose with such prescriptions.

But that concern sometimes results in the doctor being a little overzealous. The doctor is unconvinced that the patient is really in as much pain as they claim, and concludes the patient has developed an addiction. They note that conclusion in the patient’s medical records, and the patient feels they have been branded as a junkie to any and all doctors that examine their records in the future. The patient calls our office, wanting to sue for defamation, in order to get the comment removed from the record.

We have never sued on that basis, and probably never will, but keep reading, because I can offer a possible solution. Continue reading

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Think Twice Before You Call the Police

Angry Plaintiff in Jail


California recently turned defamation law on its ear, as regards calling the police. Since 1872, anyone calling the police was protected from a civil action for what they said to the police. Now, thanks to a virtue-signaling Legislature, if you witness a crime, you have to consider some very far-reaching ramifications, and think twice before you call the police. Let me set the scene with a hypothetical that will demonstrate what California has done.

A simple parking dispute.

You and your neighbor Bob have an ongoing dispute about whether your visitors can park on the street in front of his house. During a small gathering at your home, you happen to look out the window and see Bob spray painting “no parking!” on one of your guest’s cars. You report the incident to the police, and after seeing paint on Bob’s fingers matching the paint on the car, they take him away for booking.

Bob is quite a jerk, and is already on probation for a prior criminal offense. Painting the car was a clear violation of his probation, so if he can’t figure out a way to beat this rap, he is going to spend some time in jail. So he comes up with a brilliant strategy.

He decides he will sue you in civil court for defamation, claiming you lied when you told the police that you saw him vandalizing the car. Whether or not he will win is of no importance. Rather, his plan is to make you spend tens of thousands of dollars fighting his defamation claim. You will soon realize that you really gain nothing by having Bob prosecuted, beyond seeing justice done. You will at some point ask yourself, “is that justice worth the $50,000 or more I am going to spend on attorneys, fighting against this defamation claim?”

Glowering manFar beyond the cost, Bob’s lawsuit against you will give him all kinds of opportunities to harass you. His attorneys can make you spend most of your free time responding to discovery, and he can even make you show up at the time and place he chooses, and sit across a table from him while his attorney asks you personal questions at a deposition. Heck, he might even decide to take the deposition himself just so he can have the personal satisfaction of making you answer whatever questions he decides to ask you over the course of seven hours. He can bring in every person who was at your house and put them through the same experience.

The standard for what is relevant is very broad in litigation. Since his claim is that you made up the entire story about him vandalizing the car, he is permitted to try and determine what motivated you to do such a horrible thing. Do you have a thing for his wife, and were trying to get him out of the way? Or maybe you have a thing for him, and are mad that it is unrequited.

Since he will be seeking punitive damages, and such damages are based on your income and net worth, he can ask you to turn over all your financial information. There are protections against this, but you will spend thousands to have your attorney fight the discovery demand in court. Continue reading

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How to Get Documents from Your HOA

You’re mad as heck at your homeowners association.

You just received the annual report, and the board is spending what you consider to be an obscene amount of money on various repairs. You’d love to see the contracts with the vendors, and maybe the board meeting minutes to see how the hiring process was handled. But do you have the right to demand those documents?

Yes you do. In fact, there are a litany of documents that the HOA must make available to you upon written request.

Here is how to get documents from your HOA.

The process is governed primarily by two sections of the California Civil Code. Section 5200 identifies the documents you can demand, and section 5210 sets forth the demand procedure. I’ll provide the language from the sections below, but in summary, the HOA is required to provide copies of the documents within ten days of written request, and can charge you a reasonable fee for making the copies. In the case of the minutes, they must be available to members within 30 days of the board meeting. Continue reading

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Bell v. Feibush — Six Years Later

Woman fighting with a robberBell v. Feibush

It’s been almost six years since Morris & Stone broke new legal ground with the decision of Bell v. Feibush, and I thought I’d take a look at some of the cases that sprang from the case.

In case you are unfamiliar, I represented a woman named Sharon Bell, who had been fleeced by a family member named Igal Feibush. Bell had loaned Feibush some $200,000, based in part on his representation that he owned the copyright to “tough love” and would use the money to market that concept. Feibush never repaid Bell, and Bell retained me to go after the money. It was our contention that he never owned the claim copyright and/or had no intention to market it.

This situation had arisen in prior cases, wherein someone commits fraud in order to obtain money, and I was always frustrated that the worst that could happen is that the plaintiff will obtain a judgment for the amount the defendant took. It typically results in a net loss to the plaintiff, even in victory, because unless there is a statute or contract that provides for the recovery of attorney fees, those fees are not recoverable. In a fraud claim a plaintiff can ask for punitive damages, but punitive damages are based on the financial situation of the defendant. If the defendant has no net worth, as was the case here, there will be little or no punitive damages. Continue reading

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What you can do when your HOA’s Architectural Committee denies your request

White colonial house with a porch and plants

Last week I wrote an article that responds to the question, “Can an HOA reduce the amount of unpaid fees that I owe?” I have already been able to refer callers to that article for a detailed response to the question.

Today I received an email asking the second most common HOA question I get, namely, “Can the architectural committee reject a change I want to make to my property, when other homeowners previously made the same change?” Or sometimes the question is in the broader form of, “Can the architectural committee reject my completely reasonable request?”

Although this article will deal with decisions (or lack thereof) by the architectural committee, the same reasoning applies the the HOA board of directors and the decisions the directors make. As with last week’s article, again the answer to these questions is apparent if you have the proper mindset about the nature of an HOA. Continue reading

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What you can do when you are behind on your HOA dues

woman uses magnifying glass to check contract
I get calls with this question a couple of times a week, so I decided it was time to post an article in order to help people with this scenario.

The caller lives in a homeowners association (HOA), and for whatever reason fell behind in their association dues. Eventually, they owe more than they can pay, so they contact the HOA or go to an HOA meeting and nicely asked for a reduction of the total amount owed. Alternatively, they might be willing to pay the full amount, but request that the HOA permits payments.

In some cases the caller may be especially upset because in addition to the unpaid dues, the HOA has slapped on significant late fees. In the worst cases, the HOA has turned the matter over to their attorney, who has initiated a foreclosure process and added thousands of dollars in attorney fees to the amount owed.

The caller needs help. They want to hire me to take one or more of the following actions:

1. Force the HOA to accept payments.

2. Sue the HOA, seeking to remove the amounts the callers deems to be unfair, such as the late fees.

3. Defend against the foreclosure action, and in doing so get the amount owed reduced.

To determine if any of these actions are viable, you need to have the proper point of reference. Continue reading

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The Girl in the Red Bikini — A Facebook Tale

I present now a fascinating case that serves to illustrate a couple of points about Internet defamation. We’ll call this one the Girl in the Red Bikini.

Enter the Fayette County School District in Georgia. School District administrators decided it would be a good idea to warn their high school students about the dangers of posting photographs on social sites such as Facebook. They came up with a presentation with the theme, “once it’s there, its there to stay.” A perfectly valid message to teach the high schoolers.

But then they did something strange. They decided that to really drive home the point, the presentation needed embarrassing photos posted by current students. They snooped around on their students’ Facebook pages to find what they considered illustrative examples of the poor choices being made by their students.

One photo they decided was a good illustration was a photo of student Chelsea Chaney. Ms. Chaney had dared to post a picture of her standing beside a cardboard cut-out of the artist formerly know as Snoop Dogg (he now goes by Snoop Lion in case you missed the memo). Snoop (or, rather, his cardboard cut-out) is holding a can of something. I really can’t identify it from the photo. It could be a beer but it could just as easily be an energy drink. Worse, though, in the minds of the Fayette County School District, Ms. Chaney was wearing a bikini. Put those facts together, and you have what is obviously a very embarrassing photo that never should have been posted, apparently because it shows public drunkenness and promiscuity, at least in the warped minds of the District.

In reality, the photo was entirely innocent and implied nothing. (Obviously Ms. Chaney was not happy that the photo was posted so I won’t republish it, but it is already published here.) But imagine the shock of Chaney, seeing her photo come up on the screen at a school assembly, used as an example of poor choices. She didn’t think that was very cool, and is now suing the school district.

But as reprehensible as it was, was the school’s conduct actionable? Chaney is caught in a bit of a Catch-22. There is nothing wrong with the photo, so why should the school be liable for showing it? I certainly would not have wanted a photo of me displayed to the entire school in this context, but where are the damages? The fatal flaw in Chaney’s argument is the lack of privacy. You can’t post something on line, and then claim it invaded your privacy when someone else displayed the photo.

So what are the takeaways from this case (aside from not going to school in Fayette County)? The school district was idiotic to create this presentation, but it does serve to illustrate that the photos you post can have very unforeseen consequences, even if they aren’t inappropriate. Also, this is yet another example of the Barbara Streisand Effect. Chaney was justifiably embarrassed and angry that the photo was posted, but whereas before only her schoolmates saw it, now she has made it a topic of discussion all over the Internet. That may be a price she is willing to pay in order to combat this behavior, but just be aware that any action can fan the very flames you were hoping to extinguish.

[UPDATE:] The court later dismissed Chaney’s complaint. As it held, “the constitutional right to privacy does not include a ‘right to be free from public embarrassment or damage to [her] reputation.’” The court noted that Chaney could not claim invasion of privacy, when she herself had posted the photo on Facebook.

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Jury Gets it Right – AEG Live Not Responsible for Michael Jackson’s Death

A Los Angeles jury just decided that Dr. Conrad Murray was hired by AEG Live, but that the company has no responsibility for any negligence by Dr. Murray that led to the death of Michael Jackson.

Attorneys for the plaintiffs had hoped that if they could convince the jurors that AEG Live hired Murray, they would hold AEG liable for Jackson’s death due to the negligence of Murray.

Sometimes in big cases like this, attorneys lose sight of basic legal principles. If decided properly, this case was properly unwinnable. In the first place, even if AEG did hire Murray, it would only be liable if it was negligent in some way. For example, if Murray was a quack and AEG was aware of that fact, it could be liable under a theory of negligent hiring. However, Murray had no history of negligence. There was no reason for AEG to suspect that Murray would be a risk to Jackson. The best plaintiffs’ counsel could do in that regard was to argue that Murray had financial problems. From there, they were hoping that the jurors would make the leap in logic that if Murray had financial problems, he might do anything to keep Jackson happy to keep his job, even if it was not good medicine.

The jurors rejected that logic. They did find that AEG Live had hired Murray, but that’s as far as they would go. They rejected all of the claims that would have supported an award of damages.

Additionally, even if the jury had found a basis for damages (plaintiffs were seeking between one and two billion dollars in damages), since the claim was for negligence, any award would have to be reduced by Jackson’s own contributory negligence. What is the percentage of Jackson’s culpability when he was the one demanding that Murray give him the drug that caused his death. Some would hold him only partially responsible, reasoning that the doctor should have intervened, while others would hold him entirely responsible, reasoning that people should be responsible for their own decision. Plaintiffs’ counsel suggested that any award should be reduced by 20% to account for Jackson’s contributory negligence.

This case was at best a Hail Mary, and with the benefit of my always perfect 20-20 hindsight, should never have been brought.

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Defamation is Bad, but it Doesn’t Justify Chilling Free Speech

Blocked in Canada

Our neighbors to the North are very American-like, until you get to issues of free speech. Most view Canada as the “least protective of free speech in the English-speaking world.” Reasonable minds can differ on some of Canada’s laws, such as prohibiting the media from identifying criminals until they have been convicted, but most of the law is still based on policies designed to prevent any criticism of the government. Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed.

A recent parody video posted on You Tube illustrates just how lacking the concept of free speech is in Canada. The video is a fake cable company ad posted by Extremely Decent Films. It does not mention any cable company by name, and indeed it is specifically directed at American cable companies. Nonetheless, someone lodged a complaint in Canada, and that was sufficient to scare You Tube into removing the video, given the vagaries of Canada’s libel laws (although the video has since been reposted in response to articles such as this one).

Posted in Article, Cases, Communications Decency Act, Defamation, Internet Defamation, Law, Libel | Tagged , , | 1 Comment

Anti-SLAPP Victory: Reality Television is Free Speech

storage warsThe reality show “Storage Wars” has created a case that offers some important anti-SLAPP (and litigation) lessons.

In December, David Hester filed a lawsuit against A&E Television Networks alleging that producers of Storage Wars rigged the reality-television series by salting storage lockers with valuable items before they were auctioned off to buyers. The producers deny the claim, pointing out that they have no access to the lockers before they are sold, but it could be that they are adding the items with the assistance of the buyers, after the purchase, to make the show more entertaining. After all, if the show was nothing but lockers full of expired National Geographic magazines, that would get boring fast. But I digress.

According to his lawsuit, Hester was told that his contract would be renewed for season four, but after complaining about the “fraud” that was being perpetrated on the viewers, he was told his services would no longer be required. He sued A&E and another entity for wrongful termination (huh?), breach of contract, breach of the covenant of good faith, unfair business practices, and declaratory relief.

Lesson 1:  For every wrong, there is not necessarily a remedy.

Some attorneys just never get this. If I hire you for my television show, and I have the contractual right not to renew that contract at some point in the future, and you do something I don’t like, such as telling me you don’t like the way I am running the show that I’m paying you $750,000 to be on, then I just may decide not to keep you around. You are not some bastion for the public, given the task of making sure my show is pure. All reality shows are faked to some extent, and the viewers all know they are faked (although, incredibly, I did once run into a guy who thinks Ghost Hunters is totally legit).

It may stink that Hester got “fired” for wanting to keep the show honest, but if he wanted to make sure he never got fired for criticizing the show, the he should have added a “you may not fire me when I tell you your show stinks” clause to his contract.

Lesson 2:  A faked reality show is an expression of free speech.

Can you sue Stephen King when you find out Pet Sematary [sic] is not based on reality? Then why did Hester and his counsel think they could sue A&E for its fictional Storage Wars? Not surprisingly, A&E’s attorneys asked the same question in the form of an anti-SLAPP motion. The motion was a no-brainer, because it involves a free speech issue of public interest, bringing it within the anti-SLAPP statute, and there was zero chance of Hester prevailing on at least one or more of his causes of action, so the second element was a lock. As I have explained many times here, a SLAPP suit will often make no mention of defamation or any other obviously SLAPPable claim, but nonetheless will be a SLAPP.

Lesson 3:  Betting wrong on a SLAPP can be very expensive since some courts continue to rubber-stamp huge fee applications.

There is case authority for the proposition that if a court finds that a fee application on an anti-SLAPP motion was inflated, it can deny fees altogether, but I have yet to see a court follow the rule. In one case, I was brought in to challenge a fee application, and persuaded the court to knock off about 40% of the hours that were requested by the attorney who had successfully brought the anti-SLAPP motion. When the court stated in was reducing the fees by that amount, I reminded it of the authority that it could deny the fees altogether since defense counsel had been caught padding the bill. The judge responded, “Padding, what padding? I did not see any padding.” Well your honor, if the hours were all legitimate, then you should have awarded the full amount. But since you agreed with me that 40% of the time was inappropriate, then I would describe that as padding.

I have not reviewed the invoices for the anti-SLAPP motion in this case, nor do I know what other activities if any followed the original anti-SLAPP motion (for example, the plaintiff will sometimes request permission to conduct discovery following the motion and that takes time), so I offer no opinion on whether the time spent was appropriate. In the end, even after reducing the attorney fees requested by defense counsel, the attorney fees awarded still exceeded $120,000.

Posted in anti-SLAPP Motion, Case Results, Defamation | Tagged , , , | 2 Comments