RSS FeedLiebeck v. McDonald’s Restaurants – Redux
Aimee Green of The Oregonian reports,
An attorney for Aurora Hill filed suit in Multnomah County Circuit Court Wednesday afternoon — stirring memories of a controversial 1994 suit in which a jury awarded $2.86 million to an Albuquerque, New Mexico woman who spilled scalding-hot coffee on herself, suffering severe burns that required hospitalization. Upon appeal, the parties settled for an undisclosed amount.
…She went into “nervous shock,” endured pain and has scarring. She seeks $7,182 for her pain and suffering, plus another $318 for lost wages and medical expenses.
See our previous posts:
- Driving While Under the Influence of Texting
- Defending Liebeck v. McDonald’s
- Liebeck v. Starbucks – The New Chapter of Hot Torts
Dr. Gabor Maté of Insite
Democracy Now has an interview with Dr. Gabor Maté of Insite,
AMY GOODMAN: The Obama administration’s budget proposal for the Office of National Drug Control Policy sets aside nearly twice the amount of funding for law enforcement and criminalization than for treatment and prevention of drug addiction. Out of a total of $15.5 billion, some $10 billion are used for enforcement. National Drug Control Policy Gil Kerlikowske praised the numbers as reflecting a “balanced and comprehensive drug strategy.”
Well, just last year, the newly appointed drug czar and former Seattle police chief had called for an end to the so-called “war on drugs,” raising hopes among advocates of harm-reduction approaches to curbing drug use. In an interview with the Wall Street Journal last May, Kerlikowske said, “People see a war as a war on them. We’re not at war with people in this country.”
Well, I’m joined right now here in the Democracy Now! studio by a doctor who has spent the last twelve years working with one of the densest populations of drug addicts in the world. Dr. Gabor Maté is the staff physician at the Portland Hotel, a residence and harm reduction facility in Vancouver, Canada’s Downtown Eastside. Dr. Maté also treats addicts at the only safe-injection site in North America, a center that’s come under fire from Canada’s Conservative government led by Stephen Harper.
Dr. Gabor Maté is the bestselling author of four books. His latest, just out in the United States, is called In the Realm of Hungry Ghosts: Close Encounters with Addiction…
DR. GABOR MATÉ: Well, the first point to get there is that if people who become severe addicts, as shown by all the studies, were for the most part abused children, then we realize that the war on drugs is actually waged against people that were abused from the moment they were born, or from an early age on. In other words, we’re punishing people for having been abused. That’s the first point.
The second point is, is that the research clearly shows that the biggest driver of addictive relapse and addictive behavior is actually stress. In North America right now, because of the economic crisis, a lot of people are eating junk food, because junk foods release endorphins and dopamine in the brain. So that stress drives addiction.
Now imagine a situation where we’re trying to figure out how to help addicts. Would we come up with a system that stresses them to the max? Who would design a system that ostracizes, marginalizes, impoverishes and ensures the disease of the addict, and hope, through that system, to rehabilitate large numbers? It can’t be done. In other words, the so-called “war on drugs,” which, as the new drug czar points out, is a war on people, actually entrenches addiction deeply. Furthermore, it institutionalizes people in facilities where the care is very—there’s no care. We call it a “correctional” system, but it doesn’t correct anything. It’s a punitive system. So people suffer more, and then they come out, and of course they’re more entrenched in their addiction than they were when they went in.
Insite Victory
The InSite facility in Vancouver won its most recent hearing at the B.C. S.C.
See more at Junkie Life
Don’t Smile when Depressed and Dancing with Strippers
Nathalie Blanchard of Bromont, Quebec, has been on sick leave for a year and a half for long-term chronic depression.
The 29-year-old woman had her benefits cut by IBM after she posted pictures on Facebook at a male stripper show, her own birthday party and on holidays. Her Manulife representative told her that,
I’m available to work, because of Facebook.
Ironically, most of these events were recommended by her physician as part of her treatment.
Depression is not like other disabilities where Facebook has been used to demonstrate lack of impairment. The complex parameters of a psychosocial condition like depression is entirely distinct from factors such as range-of-motion, flexibility, and strength that are more commonly assessed in physical disabilities.
Thomas Lavin, Blanchard’s counsel, expressed similar reservations,
I don’t think for judging a mental state that Facebook is a very good tool. It’s not as if somebody had a broken back and there was a picture of them carrying …a load of bricks. My client was diagnosed with a major depression. And there were pictures of her on Facebook, in a party or having a good time. It could be that she was just trying to escape.
We don’t know if Blanchard was bipolar, or has a chronic pain condition that may affect the presentation of her depression disorder. Although the inability to smile can lead to depression, those that do smile and possibly appear happy are not necessarily without depression.
And if we think about it for a second, Blanchard is not likely to select the photos of her sulking in the corner onto her profile. Facebook photos go through a screening process, essentially attempting to put the “best face forward.” What each person considers best, whether it’s attractiveness, professionalism, interesting, provocative, or wacky, does vary from person to person. In Blanchard’s case, where family and friends likely know about her prolonged bout with the blues, it is not unreasonable to expect her to at least try to look happy.
Here are some more established methods of evaluating depression, that long precede the use of Facebook photos:
- Hamilton Rating Scale for Depression (HRSD or HAM-D)
- Montgomery-Åsberg Depression Rating Scale (MADRS)
- Beck Depression Inventory (BDI or BDI-II)
- Zung Self-Rating Depression Scale
- And more.
As persuasive as Facebook photos might be to a jury, it lacks scientific reliability and validity. Insurance adjusters know this, and without corresponding clinical data to confirm any impressions, they should be reluctant to reject or terminate claims on the basis of photos alone without any context.
Part II: Soldiering on? The invisible injuries of war
Guest Post by Krystalline Kraus | Reproduced from www.rabble.ca with permsision
Next week, on November 11, veterans will get only two minutes of recognition — if people stop to reflect at all — while the rest of the year their sacrifice is forgotten.
If Canada’s mission in Afghanistan does end in 2011, 35,000 men and women will have served in that theatre — 133 have been killed thus far — and the Canadian Forces’ (CF) low estimate is that as many as 2,000 could be returning home with an Operational Stress Injury (OSI) such as PTSD.
These soldiers will return home with, among other things, an OSI or plagued by survivor’s guilt and the pressure to do good by their dead friends; first they bury them and then they bury their own feelings. As the saying goes: Survivors die twice.
Massacre at Fort Hood
The problems the U.S. military would prefer to hide violently surged to the public’s attention when Major Nidal Malik Hasan, a 39-year-old U.S. Army psychiatrist, allegedly opened fire yesterday afternoon at Fort Hood, Texas. He is accused of killing 13 people and wounding 30.
A New York Times article features an interview with Hasan’s cousin, who states that he expressed deep concern about being sent to Iraq or Afghanistan; the cousin also notes that Hasan’s job was to counsel returning soldiers suffering with PTSD which gave him an intimate window into the horrors of war. This made him fearful of deploying to either theatre. His cousin also claims he was having second thoughts about his military career a few years ago after other soldiers harassed him for being a Muslim.
Withler We Go From Here: The Future of Pension Reform
Western Law hosted a forum on pension reform this past Thursday, featuring community leaders, legal academics, and practitioners.
Pension Plan Basics
Prof. Robert Brown of the University of Waterloo explained some of the basics behind pensions.
There are two kinds of pension plans, defined benefit and defined contribution plans. A defined benefit plan provides flat benefits at a specified amount per year of work. They can present a pretty good idea of what to expect in terms of benefits, but if investments are hit hard it can decrease amount of funds, and they are often open to the vagueries of the market. A defined contribution plan allows you to determine how much goes into the plan, but you don’t know what you will get when you retire.
A multiple employer pension plan allows you to work for many different people, all of whom contributing to funds in your pension, and are common in the building trades. Single employer pension plans are far more common, and are usually what people think about when they refer to pensions.
A further refinement of types of plans are jointly sponsored pension plans, quite common in the public sector, where there is a shared risk with the government, who matches contributions to the plan. The largest of these Ontario Teachers’ Pension Plan, which is considered one of the better plans available, with a 12% matching.
Call Them Feel-Good Expenditures, but These Girls Will Cost You
Running a call-girl business is an inherently risky venture. The lines frequently blur, and participants end up in what the law would describe as prostitution.
To sort out these complicated legal dilemmas operators frequently have to hire counsel. Should these expenses be reportable for tax purposes?
The now-defunct Exchequer Court examined the issue back in 1964, in Canada (Minister of National Revenue – M.N.R.) v. Eldridge, when several employees of the respondent were arrested on prostitution charges.
The Taxation Division provided Notices of Assessment of $22,046.75 and $19,103.77 for the previous two years. Objections over the government collecting taxes on illegal revenue were dismissed by Mr. Justice Cattanach,
25 … it is abundantly clear from the decided cases that earnings from illegal operations or illicit businesses are subject to tax. The respondent, during her testimony, remarked that she expressed the view to the officers of the Taxation Division that it was incongruous that the government should seek to live on the avails of prostitution. However, the complete answer to such suggestion is to be found in the judgment of Rowlatt, J. in Mann v. Nash ((1929-1932) 16 T.C. 523.) where he said at p. 530:
It is said again: “Is the State coming forward to take a share of unlawful gains?” It is mere rhetoric. The State is doing nothing of the kind; they are taxing the individual with reference to certain facts. They are not partners; they are not principals in the illegality, or sharers in the illegality; they are merely taxing a man in respect of those resources. I think it is only rhetoric to say that they are sharing in his profits, and a piece of rhetoric which is perfectly useless for the solution of the question which I have to decide.
The court was more lenient with some of the substantial business expenses excluded, namely $1,925 legal fees for some of the girls who had been arrested.
The court held that the fees were properly deductible because:
- it was for the purpose of income, because the call girl could not earn any income while she was imprisoned
- it was part of the arrangement that the operator would assume legal fees in the possibility of legal troubles
Most criminal lawyers would say that $1,925 is not a lot of money for that kind of an operation, even back then. And maybe there’s good reason why they skimped on legal fees. A more sizable deduction for $16,500 was rejected, because it was claimed as “protection fees.” The recipient of the fees was none other than the local law enforcement.
So if prostitutes can claim their legal fees as a tax deduction, can lawyers claim prostitutes as a legitimate tax deduction as well? It’s a disbursement that many Bay St. firms probably wouldn’t flaunt in their recruiting brochures.
Garry Slapper of Times Online suggests that the answer, at least before the U.S. Tax Court, is that they cannot.
William G Halby, a tax lawyer from Brooklyn, claimed $111,364 in 2002 for therapeutic sex. His 2005 claims were more detailed, $5,005 in books, magazines, and videos, and $42,152 for specifically for prostitutes. He cited section 213 of the Internal Revenue Code:
§ 213. Medical, dental, etc., expenses
(a) Allowance of deduction
There shall be allowed as a deduction the expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care of the taxpayer, his spouse, or a dependent (as defined in section 152, determined without regard to subsections (b)(1), (b)(2), and (d)(1)(B) thereof), to the extent that such expenses exceed 7.5 percent of adjusted gross income.
Brian L. Friedman, Administrative Law Judge, said in the case,
…portions of petitioner’s “sex therapy” were, in fact, sex for a fee, in violation of Penal Law § 230.02. Such expenses were not paid to medical professionals or for activities prescribed by medical professionals but were made to unlicensed providers for legally proscribed services. (See Penal Law § 230.00.)
Additionally, even if it were accepted that sex constitutes medical care, such expenses would be more for petitioner’s general well-being rather than cure, mitigation, treatment or prevention of a specific disease or condition.
…petitioner failed to produce evidence that the claimed expenses were for prescribed activity, and he had little regard for physician’s advice on sexually related matters. As the periodicals cited by petitioner were neither specific towards him nor for a specific illness, they cannot possibly constitute a prescription or medical advice. Because petitioner purchased the videos, books, periodicals, pornographic materials and sexual performance aids without prescription, and they were not medically necessary to treat a specific disease or condition, they are not medical expenses for which an income tax deduction is warranted.
We still have to overcome cases like Nina Baccala of North Providence, cum laude from the New England School of Law and clerk for Superior Court Judge Raymond J. Brassard, one of the many new law graduates who moonlight as an escort. Her case was only revealed after an assault last year while on the “job.”
With a clever title for a Constitutional paper like, “A Guide to Aborting Roe v. Wade and All of Its Bastard Progeny,” I would’ve hoped Baccula could come up with some fundamentally different choices in life.
But at least next time someone cracks, “What’s the difference between a prostitute and a lawyer,” you can give them a different answer:
“Taxes.”
Flu shots can give a different kind of immunity
Swine flu vaccine makers may get a special gift from the federal government: immunity from civil negligence suits. You may not have heard about it because other swine flu news recently got much more spotlight. First, Ottawa spent five times as much on stimulus plan ads as on H1N1 awareness. And the federal Health Ministry shipped body bags to aboriginal communities to help them prepare for the epidemic. But the story about legal immunity for vaccine makers is equally deserving of national attention. Taxpayers will foot any bill for the government’s protection of pharmaceuticals, and vaccine users may bear an excessive risk of death or injury. Although the US already offers immunity to vaccine makers, Canada is different enough to require careful study and discussion of this issue.
Immunity from legal suits in this case means if the vaccine is a suspected cause of death or injury, the law will not allow victims to sue the vaccine manufacturer. They may have no recourse at all, or the government may compensate them from a special fund. The immunity shifts the risk of mistakes in vaccine making from the pharmaceutical industry to victims or to taxpayers. Under the common law, negligent companies are liable for injury or death caused by their products. But the government can protect a company from the common law liability by statute or executive decision. The main reason is to bring vital products to as many people as possible faster and at a lower cost. The government may need as many vaccine doses as possible sooner to prepare for a coming pandemic. Protecting themselves from legal liabilities can slow vaccine makers down or make the vaccine too expensive. To get a lot of vaccine fast, the government shifts the risk from pharmaceutical companies to taxpayers or vaccine users.
Unless the government compensates victims, the vaccine makers’ immunity shifts the whole burden and risk of injury or death to vaccine users. The US government has granted immunity to vaccine makers after the 1976 swine flu outbreak, but it has set up a fund to compensate victims. This is essentially a specialized public health insurance fund. For a victim to take advantage of it, a special federal court must approve the claim. It’s also an insurance fund for pharmaceuticals because taxpayers pay for their negligence. It’s not clear if vaccine makers have to pay any premiums to get the protection. And no immunity is available for wilful acts, such as intentional tainting of the vaccine.
What about Canada? Are we at the moment of truth before the epidemic hits? Are the demand for the vaccine and the threat of legal liability so high that they are bogging down pharmaceutical companies? Or are vaccine makers trying to maximize their profits at the expense of Canadian taxpayers? The federal government refuses to tell if it will shield pharmaceutical companies from liability. GlaxoSmithKline, which has already signed a contract to make 50.4 million vaccine doses at its plant in Quebec, says only that it’s talking to Ottawa. It’s already much more difficult to sue for medical or pharmaceutical malpractice in Canada than in the US. Any immunity will lower the incentive to make vaccines safer, although they will not necessarily be less safe. We don’t know if the Quebec facility can simply conveyor doses out, or if more R&D and testing are required. Neither do we know if the vaccine will be mandatory taking away our choice between the risks of the swine flu and vaccine side effects. But even if the shot is voluntary, the government should require warnings before the vaccine is administered—that is, of course, if it makes us bear the risk of vaccine makers’ negligence by offering them immunity.
Differing Views on Healthcare from an Economics Perspective
I have heard, seen and read the debate among pundits in regard to healthcare reform south of the border. Cutting through the misinformation, spin, rhetoric and outright bull, there is a somewhat trivial economic explanation to the differing opinions. As usual, some of the easiest explanations are the ones most often overlooked.
This economic perspective is a result of one of the comments I saw on the WiseLaw Blog which talked about the comments of Glenn Beck (who was ranting about a “lottery” that is the Canadian healthcare system). The comment went as follows:
“…I know nothing of Beck but suspect he promotes the “conservative” point of view, which, briefly stated, is that being rich should MEAN something….”
This is serious food for thought. What exactly does it mean to be rich? In obvious language, it implies an ability to consume luxury goods and services available in the market. Conversely, what does it mean to be the opposite of rich (I don’t want to say “poor” because that has a different definition)? It means a general inability to consume luxury goods due to having to spend the majority of income on necessities.
You can see where this is going with regards to healthcare. Framed like this, the question is trivial: is healthcare a necessity or a luxury? Your initial answer will depend on your political preference, but consider the following premises and let’s see where logic takes us:
- People cannot control when they become ill; and
- Spending on luxury goods and services is first to get cut in an economic downturn due to less money being available and thus a greater proportion of income being spent on “necessities”.
What is the logical conclusion if we assume that healthcare is a luxury? If a “rich” person becomes ill during a recession when there is less money to spend on luxuries, money would not be spent on treatment.
Politics notwithstanding, I hope my readers can see why this conclusion is silly. Treatment for an illness cannot wait for an economic upswing nor should people’s health be affected by where we stand in the business cycle.
I can therefore conclude that healthcare is not a luxury, but a necessity. This also means that the anonymous reader of WiseLaw is only partially correct: for “conservatives” being “rich” should mean something, but any conservative with an understanding of economics will understand that being the opposite of rich should not spell lack access to healthcare.
*Note*: I am well aware that I used some “economics” terms without proper “economics” definitions. I did this because I didn’t want eyes to glaze over.
Cross-posted at Lawyerling.ca
Canadians Have Reason to Love Our Healthcare
For all we’ve heard about the ills of the Canadian healthcare system during the debate about reform in the U.S., it’s worth noting that we still have some of the best outcomes in the entire world.
The CBC has an article today that shows a map of global life expectancies, and a link to a site by an American professor that allows a comparison of mortality risks.
We should be proud of what we’ve accomplished here.
Deadly insulation: Zonolite Lawsuit deadline Aug 31.
Don’t mess around with the insulation in your house. It may be Zonolite. It’s made from minerals naturally laced with asbestos, the deadliest type of asbestos known as Tremolite.
It costs money to remove it. A lot of it. If you get a jump on things and get involved with the lawsuit, depending on where your house is located (U.S. or Canada), homeowners can get some assistance. In the U.S., up to $7500 and in Canada homeowners can also get some money, some good gas money. $300 to those who can prove the presence of Zonolite and costs incurred to contain the insulation, plus an additional $600 for those who’ve taken major remedial measures like removal. And the average cost of removal is $7000 to $8000.
The company that developed Zonolite, W.R. Grace has filed for bankruptcy and the terms of settlement are outlined above. However, Aug. 31 is the deadline for any Canadian home lined with Zonolite to bring a claim, whereas homes in the U.S. can still bring a claim after Aug. 31.
http://www.yourhome.ca/homes/newsfeatures/article/685245
Interviews on Insite at the B.C. C.A.
Podcast Feeds
Awards
Partners
- Advertise Here
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
The Whiners - The Elusive Fish Creative Services
- Mesothelioma Lawyer
- no win no fee solicitors
- Compensation Claims
- personal injury lawyer toronto
- no win no fee
- Pardons Canada Accident Claim Medical Negligence Whiplash Claim
- No win No fee Claims
- Venue
-
-
-
-
-
-
-
-
-
-
-
-
