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Litigation: Protecting your Minor

Has your business ever encountered an unsatisfied customer? It’s likely the answer is – yes!

When a health care provider faces this situation, they often find themselves weighing a number of variables before taking a course of action that fits their situation best.  Pediatric health care providers often face an additional factor that other business don’t encounter.  When you are determining the best course of action, consider – cost of settlement, attorneys’ fees, litigation costs, and public opinion.  Where the merits of the matter justify it, the cost of settling the dispute may be less than the risks and expenses of a prolonged legal battle.

Health care providers typically negotiate disputes with the allegedly harmed individual themselves (pro per) or through their attorney.  However, this is a little different with pediatric health care providers.  They may find themselves in an unusual situation where they are not negotiating with the party that allegedly sustained harm – the patient who is a minor.  Often the parent or parents of the minor will negotiate on their minor child’s behalf with the health care provider, provided that the minor’s parents have not retained counsel or are attorneys themselves.  The problem with this is that while the parents could represent themselves without an attorney, they cannot represent their children.  Moreover, if a minor signed a waiver and release of his or her own rights it would not be enforceable.  Once the minor reached the age of 18, they could affirm the release at that time, but it is unlikely that would happen.

California Probate Code § 3500 provides a solution to this problem by allowing the parents of the minor to “compromise, or to execute a covenant not to sue on or a covenant not to enforce judgment on, the claim…only after it has been approved, upon the filing of a petition, by the superior court.”  This means that the parents of the minor may enter a waiver and release of the child’s rights to their claim, provided that they file the required petition with the court and the petition is approved.  After judicial approval of the petition, a health care provider would be assured that the parents of the minor have the authority to enter into a final settlement on their child’s behalf. Once the waiver is executed, the minor would be barred from bringing an action against the provider, based on the same alleged injury, at a later date.

However, the filing of a petition pursuant to California Probate Code § 3500 will undoubtedly increase the cost of any proposed settlement and may require that the minor’s parents retain counsel in order to assist with the drafting and filing of the petition.  This additional expense represents the cost of finality of the dispute.  Pediatric health care providers should be aware and cognizant of this provision in the California Probate Code and its use should be weighed in any settlement negotiation decision involving a minor.

By Aaron R. Claxton

The Power of Positivity in the Workplace

Most advice from lawyers to employers tends to focus on compliance with legal obligations imposed by statute or regulation, conformity with requirements contained in policy manuals, employee training in the area of sexual harassment prevention and like subjects, and similar “law-based” duties. What sometimes gets lost in the miasma of legal compliance is a more basic truth: The number one thing any employer can do to cultivate a vibrant work environment, and minimize employee complaints (both formal and informal), is simply to…be positive and accessible.

It is basic human nature that people are more likely to overlook grievances when the subject of the grievance —   either individually or institutionally —    is otherwise viewed positively. Taking a moment during the course of the day to say “hello” to your employees, or to ask about a weekend, or simply to look your employees in the eye while they tell you about something, can pay untold dividends that you may never know exist. Not only does such interaction make your employees feel valued and validated, but you may learn something useful about their interests or skill sets that you didn’t previously know. Moreover, unless you are the consummate introvert, you yourself will feel good about the interaction, and be more fulfilled from having at least a basic sense of who your employees are, and what makes them tick.

By contrast, if your sole interactions with your employees are work-centered (“John/Jane, please take the following memo….”), your employees are likely to see themselves as nothing more than cogs in a machine, with no independent reason for enthusiasm or loyalty beyond the paycheck they draw. Such an approach also needlessly divests you of an opportunity for your employees to see you as a human being, rather than just a larger/more senior cog. If you are viewed only as “the management,” employees are less likely to pump their own brakes on the lodging of a complaint for something that they see as offensive or actionable.

So, the next time you are tempted to power walk to your office and close the door, devote ten seconds to thinking about whether you have yet had a positive interaction with one or more employees that day. If not, take a minute or two to do so, even if it’s just to say “how are you today, Sydney”? The worst that can happen is that you find something out that you didn’t already know. And hey, is that so bad?

By Daniel L. Baxter

Shannon Smith-Crowley Co-Authors “Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment”

The article, “Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment,” features Shannon Smith-Crowley and co-author Catherine Gordon, MD and was originally published on the ACOG (The American Congress of Obstetricians and Gynecologists) members only website.

Check out the full article at the link below!

Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment

Twenty-Five Wilke Fleury Attorneys Selected as Sacramento’s 2017 Top Lawyers!

Congratulations to Wilke Fleury’s Top Lawyers by Sacramento Magazine!

Daniel L. Baxter, Business Litigation; Adriana C. Cervantes, Medical Malpractice; Christine M. Collins, Health Care; Anthony R. Eaton, Business Litigation; Daniel L. Egan, Bankruptcy; Samson R. Elsbernd, Employment & Labor; Daniel J. Foster, Business Litigation;  David A. Frenznick, Business Litigation; Scott L. Gassaway, Medical Malpractice; George A. Guthrie, Real Estate; N. Aaron Johnson, Tax, Estate Planning & Probate; Ernest J. Krtil, Estate Planning & Probate; Ronald R. Lamb, Medical Malpractice; Neal C. Lutterman, Health Care; Stephen K. Marmaduke, Employment & Labor; Robert R. Mirkin, Real Estate; Gene E. Pendergast Jr., Estate Planning & Probate; Michael G. Polis, Health Care; Matthew W. Powell, Business Litigation; Thomas G. Redmon, Real Estate; Bianca S. Samuel, Employment & Labor; Shannon Smith-Crowley, Legislative & Governmental Affairs; Trevor L. Stapleton, Estate Planning & Probate; John R. Valencia, Legislative & Governmental Affairs; Steven J. Williamson, Bankruptcy and Creditor/Debtor

The voting for Professional Research Services’ survey to determine the top attorneys in 2017 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. ~ Sacramento Magazine

Wilke Fleury Helps Client License New Vision Plan

EyeMax Vision Plan, Inc. To Provide Comprehensive Vision Care To Individuals And Groups In California Sacramento

Sacramento, CA., July 26, 2017 – Wilke Fleury’s health care law team, led by Michael G. Polis, has assisted its client, EyeMax Vision Plan, Inc., in obtaining a Knox-Keene license, making the plan the State of California’s first new full-service vision plan in the state in 20 years.

EyeMax Vision Plan’s founder, president and CEO D.K. Kim previously founded one of the nation’s top 20 optical labs, CSC Labs, in 1967. The company grew to become the 2nd largest independently owned optical lab in the nation, servicing over 3,000 customers nationally and internationally.

Kim’s new company, EyeMax Vision Plan, has contracted with more than 1,000 board-certified optometrists and ophthalmologists, and prescription lens manufacturers to provide affordable, comprehensive prepaid vision care to individuals, employer groups, government agencies, and labor organizations.

“We are proud to support Mr. Kim’s desire for providing high-quality, affordable vision care options for Californians,” said Michael G. Polis. “Obtaining a Knox-Keene license requires satisfying very rigorous regulatory and financial requirements. Mr. Kim’s experience and professionalism made this exciting transaction possible.”

The U.S. eye care market is growing, according to Vision Watch. The industry generated nearly $40 billion in revenue in 2015, an increase of 5.8% over the previous year.

“EyeMax recognizes that the vision care market is shifting, with private pay patients declining and group plan patients becoming a larger share of market,” said D.K. Kim. “We are focused on tailoring flexible plans to meet the unique needs of employer groups, large and small.”

Wilke Fleury is a thriving mid-sized general practice law firm located in California’s business and political epicenter, Sacramento. Celebrating our 95th year, our attorneys offer broad expertise, creativity, and strong ties to local businesses, families and individuals, making Wilke Fleury one of the region’s most respected and long-standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.

Wilke Fleury Attorney Daniel L. Baxter Lends Expertise on Dealing with Bad Reviews

Maybe a friend sends you a link to it.

Maybe it’s a Facebook post.

Maybe it’s a Yelp review.

But it makes your blood boil as you read each vicious word that a client has written.

Words that publicly smear you as a business person and as a professional.

Words that aren’t fair.

What do you do? Daniel Baxter thinks you should take a deep breath and walk away from your screen.

“Just as often as not, the response to a Yelp review or a social media post can have more negative ramifications than the review itself,” said the partner at Sacramento law firm Wilke, Fleury, Hoffelt, Gould & Birney, LLP.

The digital age has brought many tools to make the lives of vets easier.

It also brings its share of challenges.

And a bad online review or an angry social media rant by a client is a challenge most vets will face over the course of their career.

Baxter, who specializes in complex business litigation and trial work, has represented the California Veterinary Medical Association in various matters over the years. He also recently presented at the Pacific Veterinary Conference, which ran June 29-July 2 in Long Beach, California, on how to be a veterinarian in the digital age.

Read the full article here: https://dragonveterinary.com/vet-blog//dealing-with-bad-reviews 

By Daniel L. Baxter

Wilke Fleury Expands With Addition Of New Associate

Sacramento, Calif., July 21, 2017 – Aaron R. Claxton has joined Wilke Fleury as an Associate, expanding the firm’s capacity to serve the needs of clients in the areas of healthcare and corporate law. Previously, Mr. Claxton worked closely with clients at a local insurance brokerage and was a member of the Elder and Health Law Clinic where he participated in the successful appeal of a denied Medicare claim that resulted in a reimbursement in excess of $100,000 to the estate of a client.

Mr. Claxton graduated from University of the Pacific, McGeorge School of Law, Juris Doctor with Distinction, and St. Mary’s College, where he earned a Bachelor of Science in Business Finance with Honors. He lives in Natomas with his wife and son, and enjoys traveling, cycling, hiking and soccer. “The practice of law provides a unique opportunity to develop effective and creative solutions to advance the interests of clients,” Claxton states.

Check out Aaron R. Claxton’s full bio here: Aaron R. Claxton

VLOG: Disclosures for Background Checks: A Cautionary Tale

Read the full article here: http://www.wilkefleury.com/blog/disclosures-background-checks-cautionary-tale/

2017 Super Lawyers and Rising Stars!

Wilke Fleury is thrilled to announce our 2017 Super Lawyers and Rising Stars! Twelve of our talented attorneys have been honored with the Super Lawyers distinction and an additional four attorneys were honored with the Rising Stars distinction.

Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. The Super Lawyers list represents only five percent of lawyers in California and Rising Stars reflects 2.5% of the state’s up-and-coming lawyers.

Congratulations to Wilke Fleury’s 2017 Super Lawyers and Rising Stars!

2017 Super Lawyers

Dan Baxter, Business Litigation; Philip Birney, Healthcare; Anthony Eaton, Business Litigation; Daniel Egan, Bankruptcy: Business; David Frenznick, Construction Litigation; Jim Krtil, Estate and Probate; Ronald Lamb, Medical Malpractice: Defense; Stephen Marmaduke, Business/Corporate; Michael Polis, Healthcare; Thomas Redmon, Business Litigation; Robert Tyler, Medical Malpractice: Defense.

2017 Rising Stars

Adriana Cervantes, Medical Malpractice: Defense; Christine Collins, Healthcare; Samson Elsbernd, Civil Litigation: Defense; Bianca Samuel, Employment Litigation: Defense

Disclosures for Background Checks: A Cautionary Tale

Background checks are oftentimes a condition of employment.  Employers who seek to perform background checks must comply with applicable state and federal law before they can obtain such information.  This generally includes statutory disclosures and obtaining authorization from the applicant.  Employers who fail to comply with the letter of the law can be sued for violation of the statutory requirements, even when the employee has not suffered any actual damages from noncompliance.

Syed v. M-I, LLC (2017) 853 F.3d 492 is instructive.  The employer was sued under the federal Fair Credit Reporting Act (“FCRA”) because its disclosure document for seeking a background check on applicants did not comply with the FCRA.  The FCRA requires a clear and conspicuous written disclosure before a background check can be performed for employment purposes.  The statute also requires a written authorization for the background check, and permits the authorization to appear in the same document as the disclosure.  The problem in this case was that the disclosure document contained too much information.  Besides the disclosure and the authorization, the employer also included a release of liability.  The court of appeal determined that the FCRA was not ambiguous in its requirement of a document consisting “solely” of the disclosure.  The only exception was for the authorization to be included as part of the disclosure document, so by including the release despite the statute’s unambiguous language, the employer willfully violated the FCRA.

Notably, the employee did not claim that he suffered any actual damages in his lawsuit.  Afterall, he was hired.  He subsequently learned of the error when he reviewed his personnel file and saw the release that he signed when he was as an applicant.   Nevertheless, he was still able to sue his employer for statutory and punitive damages, and could seek to recover his attorney fees.  This case is a lesson to employers of the importance of getting it right, particularly in an area so heavily regulated by statute as are background checks.  Errors in records can stick around for quite some time, and employers may face lawsuits for seemingly harmless errors.  Employees may even have help in looking for and finding problems because the FCRA, like numerous employment statutes, allow employees to recoup their attorney fees when they prevail on their statutory claims.

 By Samson R. Elsbernd

VLOG: And on the Seventh Day, Employees Rest

California statutes provide that employees are entitled to one day’s rest in seven and that employers cannot cause employees to work more than six days in seven.  So just what does this mean?  Are full-time employees entitled to one day of rest in each workweek or are employees entitled to one day of rest on a rolling basis, across workweeks?  It took an employee class action lawsuit, but employers finally have the answer.

Read the full article here: http://www.wilkefleury.com/blog/seventh-day-employees-rest/

And on the Seventh Day, Employees Rest

California statutes provide that employees are entitled to one day’s rest in seven and that employers cannot cause employees to work more than six days in seven.  So just what does this mean?  Are full-time employees entitled to one day of rest in each workweek or are employees entitled to one day of rest on a rolling basis, across workweeks?  It took an employee class action lawsuit, but employers finally have the answer.

In Mendoza v. Nordstrom, Inc. (Cal. 2017) 216 Cal.Rptr.3d 889, employees filed a class action lawsuit after they had to work more than six days in a row.  Nordstrom’s workweek ran from Sunday to Saturday.  The lead plaintiff, Mendoza, worked seven or more days in a row over two workweeks on a number of occasions.  For example, in one instance, Mendoza worked Monday, March 23 to Sunday, March 29, 2009, which equated to 6 days in the first workweek and 1 day in the second workweek.  Nordstrom removed the case to federal court, and the federal court asked the California Supreme Court to determine whether the day of rest applies on a workweek basis or on a rolling basis.  The California Supreme Court determined that it applies on a workweek basis.

California employers now know that employees get one day of rest in each workweek and should be mindful of the workweeks that they have established for their employees, particularly if they have established different workweeks for different employees.   Employees can choose to work on their day of rest, but employers must be neutral with respect to that decision.  In other words, employers cannot incentivize employees to forego their day of rest and must inform employees of their entitlement to the day of rest before allowing them to forego it.

By Samson R. Elsbernd 

VLOG: Employees Can be Bound by Resignations Mistakenly Given Because of a Disability

Resignations by employees are a contractual matter in California. In other words, the resignation is an offer that the employee can withdraw before the employer accepts it. After it is accepted by the employer, the resignation is final. A recent case determined that the employee’s resignation was final even when the employee’s disability – unbeknownst to the employer at the time the employer accepted the employee’s resignation – caused the employee to resign.

Read the full article here:  http://www.wilkefleury.com/blog/employees-can-bound-resignations-mistakenly-given-disability/

Wilke Fleury Partner Trevor Stapleton Quoted in “Fortress of Solvency” by Steven Yoder, Comstocks

“A special-needs trust is a family’s most important tool in making plans to pay for care. Key government benefits like Medi-Cal and SSI are restricted when a person with special needs has assets of more than $2,000. But special-needs trusts are a bucket into which family members and others can deposit an unlimited amount of money for a range of eligible expenses for their family member, like clothes, furniture, a car or education. The government doesn’t count such a special-needs trust as part of their assets.” – Steven Yoder, Comstocks

Read the full article here: http://www.comstocksmag.com/longreads/fortress-solvency 

Employees Can be Bound by Resignations Mistakenly Given Because of A Disability

Resignations by employees are a contractual matter in California. In other words, the resignation is an offer that the employee can withdraw before the employer accepts it. After it is accepted by the employer, the resignation is final. A recent case determined that the employee’s resignation was final even when the employee’s disability – unbeknownst to the employer at the time the employer accepted the employee’s resignation – caused the employee to resign.

In Featherstone v. Southern California Permanente Medical Group, (Cal. Ct. App., Apr. 19, 2017, No. B275225) 2017 WL 1399709, the employee resigned by telephone, effective immediately, and confirmed her resignation in writing. The employer accepted her resignation. Subsequently, the employee attempted to rescind her resignation and alleged that a temporary disability resulting from her medication caused her to resign. When her employer did not allow her to rescind her resignation, the employee sued for discrimination based on disparate treatment because of her disability. In order to prevail, the employee had to demonstrate that she suffered an adverse employment action. She could not because her resignation was voluntary since the employer did nothing to coerce her resignation. Additionally, the employee was no longer an employee after she resigned, so the employer’s refusal to accept rescission of her resignation was not an adverse employment action. Since she could not prove an adverse employment action, the employer prevailed.

Employers who want to accept an employee’s resignation should act quickly before the employee withdraws the resignation. At will employees generally have no right to rescind voluntary resignations after acceptance unless they have entered other contractual arrangements with their employers permitting rescission. As demonstrated by Featherstone, a disability that allegedly causes the resignation will not undue a resignation either. Employers should keep in mind that the Featherstone employer was unaware of the employee’s disability at the time it accepted the employee’s resignation. The result would have been quite different if the employer had known about the disability before accepting the resignation.

 By Samson R. Elsbernd