Exceptional Attorney and Essential

There may have been a point when one distinguished between exceptional and essential. Many individuals may have been content in utilizing a physician, dentist, accountant, and/or an attorney, perhaps as long as they were not inferior. However, is it any different in reading or watching the news, utilizing a barber or beautician, going out to dinner, or watching a movie? When the emphasis is on the desired result, it becomes essential to want a higher standard, receive value and choose exceptional as the significant keyword. In this regard, therefore, the number one criterion in selecting the people we retain (and the things we do), becomes very important; doing anything else, such as what may only be “o.k.” becomes tantamount to accepting mediocre and, at times and at best, this is superficial, inadequate, deficient and, even worse, useless and a waste of time.

Most of us want more, with the emphasis on an effective outcome. Yet, some will inevitably place a greater importance on the cost rather than the potential adverse outcome. In other words, they do not automatically ask “what do I have to lose, such as the priceless time I have, my professional career, credibility and/or personal integrity?” Therefore, with all of this in mind, many do not want “just o.k.” and, instead, focus on exceptional as the measurement for the individual with whom they choose to employ and, often, on the things they do with the time they have.

In selecting a lawyer, the same criteria can be critical. The website Avvo provides a profile on all of the attorneys in the United States. Then, one has the opportunity to decide whether (s)he wants an attorney who is exceptional, as well as knowledgeable, skilled and highly experienced, particularly with a proven and written record of ongoing favorable results. For example, it might not at the outset seem as important in choosing a contractor, until one first looks at testimonials to determine whether there are others who have spent their savings or mortgaged their home, only to then experience their contractor departed from the plans and specifications, delayed at great length on the work and/or did not actually complete the project.

In the practice of law, it can be critical the attorney does more rather than less. It is essential in order to diminish the risk or not gamble on the outcome. Hence, in choosing a lawyer, it is recommended you evaluate the advantages of a comprehensive scope in the work to be performed involving, among other things, indispensable steps, such as a risk assessment; an exhaustive factual and legal analysis; focused research; essential strategizing; and utilizing credible experts to evaluate and provide an opinion integrated into an optimum forensic report concerning such issues, including those directly or indirectly, related to the standard of care, prudence, judgment, lawfulness, moral turpitude, competency, etc.

In summary, what some may have previously thought were unnecessary because they did not think they  required selecting an attorney who is exceptional, now are considering the above issues as very important criteria and, therefore, essential characteristics in choosing the best lawyer (and the things they do).

The Future of Healthcare Technologies and Interoperability

The U.S. Department of Health and Human Services (HHS) has recently proposed new Rules in which the concept of INTEROPERABILITY will [continue to] increase the positive impact on our health system in general, and our own health care in particular, by utilizing electronic devices.

What does Interoperability mean? I will summarize it being a process by which different information systems using electronic devices &/or applications produce a resource that can optimally connect and use health data in a coordinated manner for the direct benefit of all of us, including health care providers.  Basically, it becomes the optimal method for diagnoses, tests and other data regarding each of our own health records to be shared for providers to appropriately know, assess and evaluate these facts to better treat any current and/or future patient medical issues. Clearly, these ongoing technological innovations will optimize the health and welfare of our population as a whole, and allow each of us to benefit by having access as well.

HHS Secretary Alex Azar declared: “These proposed rules strive to bring the nation’s healthcare system one step closer to a point where patients and clinicians have the access they need to all of a patient’s health information, helping them in making better choices about care and treatment.” For us, the advantage is a highly efficient system in which we will have access to all of our medical records, and eventually the processes to also assist in interpreting the data, thereby improving our health care.

Also, the proposed Rules will require healthcare providers to implement technologies to ensure patients have easy access to their information, along with the information being easily shared by other plans and providers with whom patients obtain follow-up healthcare, thereby preventing unnecessary and/or redundant procedures and testing….”giving clinicians the time to focus on improving care coordination and, ultimately, health outcomes,” as well as patients having “the tools to shop for and coordinate their own health care.”

Nearly everyone has heard of the iPhone, iPad, Mac Computers, iTunes, iCloud, etc.  Coinciding with the above technologies, Apple has also participated in the transformation of healthcare by developing its own Applications (Apps) for the operating systems in their iPhones and Apple Watch; you can view the online video when you click this Application link and then scroll down to “Watch the Video.”

New California Law: Use and Abuse of Drugs

Effective January 1, 2019, Business and Professions Code Section 740 became new California law (Assembly Bill  2760 was signed by then Governor Brown on September 10, 2018) requiring those who prescribe medication to be more vigilant of patients who have an increased risk of substance abuse.

A prescriber is now required to provide education to a patient for overdose prevention, as well as the use of Naloxone Hydrochloride (commonly referred to as Narcan, which is available in generic form, is an opioid antagonist used for the reversal of opioid overdose, including respiratory depression. Narcan is also used for diagnosis of suspected or known acute opioid overdose) or a comparable drug approved by the United States Food and Drug Administration [FDA].

Business & Professions Code section 740 specifies the applicable criteria as the following:

  1. the prescription dosage for a patient is 90 or more morphine milligram equivalents of an opioid medication per day; and/or
  2. an opioid medication is prescribed concurrently with a prescription for benzodiazepine; and/or
  3. a patient has the indications of an increased risk for overdose.

Section 741(a)(1)(C) offers the following examples that indicate an” increased risk of overdose,” including but not limited to:

  1. a patient with a history of overdose;
  2. a patient with a history of substance use disorder; or
  3. a patient at risk for returning to a high dose of opioid medication to which the patient is no longer tolerant

Business & Professions Code section 742 states that a prescriber who fails to abide by the prescription or education requirements shall be referred to the appropriate state licensing board for the disciplinary action. Notably, the focus of Spital and Associates is on representing those who have a professional license in California, whether in the investigative stage or written and published Accusation, such as one filed by the Medical Board of California.

All opiates come from the poppy plant. Opioids have a similar effect to an opiate, but are often synthetic or partially synthetic. Both opiates and opioids are classified by the U.S. Drug Enforcement Agency as Schedule II drugs, which are considered acceptable for certain medical purposes, such as for relief of pain, but are deemed highly addictive, including Dilaudid (hydromorphone), Demerol (meperidine), Dolophine (methadone), Duragesic or Sublimaze (fentanyl), morphine, opium, OxyContin and Percocet (oxycodone), Vicodin and other medications with hydrocodone, and various drugs with Codeine. On the other hand, Heroin, LSD, marijuana (cannabis) and Ecstasy are Schedule I drugs, and these are considered the most dangerous and have no acceptable medical or safe use.

There is no question but that acute and chronic pain are debilitating medical conditions. Approximately two (2) million individuals in the United States suffer from SUBSTANCE USE disorders related to prescription opioid pain relievers. It is noteworthy that prescription drugs are the “second” most commonly abused substances, alcohol being number one. The number of deaths from opioid pain relievers that have been prescribed by physicians represent more than the number of overdose deaths involving heroin or cocaine.

Some individuals are predisposed to develop problems as a result of using drugs because they have lower levels of self-control. Notwithstanding the above, there are others who become addicted because of one or more set of personality behaviors when utilizing certain narcotics, even though lawfully prescribed by a physician.  It is hoped the mandate set forth above and a new law in California will result in a substantial decline in deaths and, of course, it will increase the nature and scope of effective and alternative modalities for pain management.

 

LINGUISTICS AND THE PRACTICE OF LAW

Linguistics is the study of language. It is reflected in everything we say and what we do. Essentially, it impacts how we communicate with others. In this regard, every word can have significance; many of which are like a double-edged sword, in which there can be two completely different meanings.

To be effective in the practice of law, one must truly understand the impact EACH word has, which includes knowing how and when to be concise instead of wordy; and, to know whether we are in fact, as well as how to be, convincing instead of unpersuasive.

There is a distinction between “effective” counsel and “competent” legal representation in that the latter is legal advice and counsel without errors, such as whether the advice and representation would result in the denial of a fair trial. This is often classified as malpractice or negligence. On the other hand, one may not have departed from the elementary standards applicable to the practice of law and, therefore, not be negligent. However, one can still be “ineffective” by failing to obtain a winning result. In the practice of law and to be effective, a lawyer should strive for superior advocacy; this should apply to how one drafts legal documents; presents oral and written arguments; drafts and finalizes written communications; as well as the basic dialogues we have with those with whom we know and/or those with whom we want to influence by producing a positive response, feeling, or opinion.

It is the “art of communications” to know what to say, how to say it, when to say it, and, where is it acceptable or beneficial to do so. Additionally, one needs to know when to say no more, if only to allow the other individual an opportunity to digest what has been said and to reply, if desired.

Here are some considerations to help illustrate the above:

  • Is the same writing style and techniques in sending or responding to texts satisfactory in writing a letter, greeting card, etc.?
  • Do you communicate the same when conferring with a loved one, family member and/or friend? Are there differences when applying for a job; writing an essay or term paper for school or college; or submitting written arguments to the adversary in a case; to an organization; an arbitrator; judge; and to an administrative agency?
  • The tone of our communications can have a different impact, perhaps one that is not intended at all. The way words are expressed can lead to different meanings. For example, stating “I love you” in an angry or sarcastic voice vs. gently and softly saying the words “I love you.” Can you “hear” the difference? Try saying the same words in a different tone and you will see the reaction [the former angry tone likely will cause  a baby to cry, out of fear].
  • What about language in politics, in newspapers and television broadcasts? Are they fair and balanced?
  • In addition, should one consider the source of the communication; the activity and context in which the communication is made; as well as the credibility of the speaker or writer?
  • When is it appropriate to make a complimentary remark in contrast to ignoring what others may say or do that truly is, or seems improper?

Whether through linguistics and/or superior advocacy, the goal of a lawyer is to evoke an acceptance of an argument or obtain support for his/her argument. It is fair to say, effective legal counsel utilizes a combination of compelling and cogent language with logic and reasoning. Essentially, this involves both the “art of communication (linguistics)” and the “art of negotiation.”

 

Canadian Government Legalizes Marijuana

On October 17, 2018, the Federal Government of Canada legalized cannabis. At best, this is a national experiment and controversial legislation. Clearly, the tax profits available to the Canadian government are enormous,  and the vast numbers of businesses devoted to the production, distribution and sales of marijuana seem boundless.  And, the question of health to adults and youth using cannabis continues to be in dispute.

The proliferation of businesses engaged in the promotion and marketing are restricted from using techniques and procedures to attract younger demographics, however, opponents contend this is a slippery slope in which  informational materials and brand marketing are sending a message to Canadians that marijuana is acceptable, perhaps confusing those who might otherwise have decided to not smoke cigarettes. And, there still remains doubt as to whether and to what extent one’s ability to safely operate equipment, machinery, and automobiles may be impaired.

While there are unanswered questions regarding the short and long term consequences of using marijuana,  many in the health profession continue to develop campaigns to alert the public as to the health and other risks associated with cannabis. Undoubtedly, this is a topic under consideration now and in the future by the representatives in the United States Government, and other countries.

Mandatory Patient Prescription Reporting Data Base

On July 1, 2016, Health and Safety Code Section 11165.1 required all designated California licensed professionals who are authorized to prescribe, order, administer and/or furnish Schedule II, III and IV controlled substances to register, on a database that is commonly referred to as CURES 2.0,  the Controlled Substance Utilization Review and Evaluation System. CURES is the prescription drug monitoring program mandated in California. Practitioners can access tips and  Registration pointers as well. Other critical and substantive information is available in the form of a Practitioner’s Manual.

Effective October 2, 2018, it is mandatory for Physicians (MD); Osteopathic Doctors (DO); Dentists (DDS); Podiatrists (DPM); Naturopathic Physicians (NP);  Physician Assistants (PA); Optometrists (OD); Nurse Practitioners (NP); Nurse Midwives (either CNM and/or CM); and Veterinarians (DVM) to consult CURES prior to performing any of the above services. After the initial consultation and at least once every four months thereafter, each of these practitioners must consult Cures 2.0  if the controlled substance continues to be part of the respective patient’s treatment. It is noteworthy that the CURES data collection vendor has published data submission instructions. The consultation requirement as such is inapplicable to Pharmacists (RPh); however, as other dispensing practitioners are obligated to monitor prescriptions of controlled substances, Pharmacists are also required to report on a weekly basis information regarding Schedule II, III and IV controlled substances being dispensed. The applicable Health and Safety Code, however, sets forth limited and designated exemptions.

It is noteworthy that a patient can obtain his or her CURES prescription history through the IPA, commonly referred to as the Information Practices Act. Each Patient Activity Report contains the following record: the patient’s name; date of birth; address; name of the prescriber and DEA number; name and license number of the pharmacy; date the prescription was filled; prescription number; drug name, drug form, drug quantity and strength; number of days of the supply, and each refill number. One may obtain the IPA Request form by contacting the CURES Help Desk.

The goal of Cures 2.0 is to ensure patient safety. Additionally, each particular licensing agency has access to the IPA information to regulate those whom they issue a professional license to ensure they follow the law and maintain proper standards and practices. Spital and Associates is an award winning law firm that provides legal advice and representation in investigations and disciplinary actions brought against individuals and entities that wish to obtain or currently have a professional and occupational license in California.

SUPERIOR ADVOCACY

How does one define the role of a lawyer? What are your expectations? Do you want an average lawyer or a truly great attorney? Here is a list of questions you might want to ask yourself and the lawyer with whom you consult:

  1. Do you want a lawyer who is pro-active, meticulous and believes in YOU?
  2. Are you intent on seeking the advice of a highly regarded attorney with boundless experience; superior knowledge and skills; is smart and knows how to persuasively articulate the case on your behalf?
  3. Do you place more value on the fees and cost of the lawyer, or are the primary factors both the direct impact of the case and the unintended consequences, now and in the future?
  4. Using objective criteria, one can read about the rating for the attorney; client reviews; attorney endorsements; full resume, including the nature, frequency and number of total and recent awards.
  5. Do you have the utmost trust and confidence in the lawyer with whom you consult, seek legal advice and representation? One of the ways to determine the character, expertise, history, and winning results can be evaluated by viewing the description and details at, and click the following link as it regards the author, on www.Avvo.com, which is a national legal directory that provides profiles of nearly every lawyer in the United States.
  6. Does your selection of an attorney also encompass whether the lawyer has respect for YOU as a valued individual, instead of  you just being another “case?”
  7. Does the lawyer have a genuine care and appreciation of YOU and your legal issue(s)?
  8. Do you want to retain a lawyer who works long and hard to solely refute, dispel or deny wrongdoing?
  9. Would you prefer a lawyer who not only does the obvious by presenting a thorough defense, but also pursues a comprehensive “offense,” which can involve a painstaking effort to marginalize the charges, allegations, as well as the inferences and conclusions?
  10. Is the attorney mindful of YOUR best interests?
  11. Despite the huge responsibilities a lawyer has to protect your rights and advance your interests, do you want an attorney who not only creates an action plan for himself/herself, but gives YOU a detailed roadmap and plan of action that focuses on what is best about YOU; your redeeming qualities; and, who involves you as an integral part of the “team,” instead of you not being actively involved?
  12. Do you want a lawyer who takes a huge number of cases (as an assembly line) and, therefore, does less on each one and charges less? On the other hand, many clients’ primary goal is to have a lawyer who has a deep commitment, is hard working, considers the advantage of a thorough investigation, research, analysis, strategizing, and has an online presence establishing their proven record.

In summary, take sufficient quality time to research the lawyer you are considering, focus on the impact the outcome can have on YOU now and in the future, rather than solely upon the costs in retaining an attorney. This situation may be a defining moment in YOUR personal and professional life. Give a great deal of weight to the objective facts set forth in the lawyer’s ratings,  attorney’s integrity,  respect by other lawyers and admiration by the countless past and current clients who have provided consistent testimonials month after month, year after year to document the knowledge, experience, skills, concern, and overwhelming energy, along with documented and proven results. Your family, friends, associates, and particularly YOU deserve superior advocacy.

Supreme Court Rules Against Mandatory Union Dues

The case of Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Janus v. ASCME), No. 16-1466 (June 27, 2018), is a landmark decision is which the U.S. Supreme Court held public sector employees, specifically those in state and local government,  cannot be required to pay membership fees if they do not want to belong to a union.

Previously, the U.S. Supreme Court ruled in Abood v. Detroit Board of Education, 431 U.S. 209 (1977),  that  state and local governments can require public employees who do not join the union be required to pay partial “fair share” fees to offset the costs of collective bargaining – negotiating and administering the contract that the non-union members benefit from, even though there is no requirement they  join the union.  The rationale is these employees receive the same benefits, including salary, vacation, sick-leave, etc. The opponents who influenced the Supreme Court argued, among other reasons, an employee should not be forced to join a Union that advocates changes to and, therefore, influences public policy; the Court concluded mandatory fees violated workers’ free speech rights who are entitled to disagree with the positions taken by a union.

Those that favor the Court’s ruling contend public employees should not be forced to pay union dues (fees) as a condition of working for the government entity. Unions will now have to establish greater value if they want to maintain and/or increase the current levels of membership.

States May Collect Sales Tax from Internet Sellers

On June 21, 2018, in the case of SOUTH DAKOTA vs. WAYFAIR, INC., ET AL, the U.S. Supreme Court held
states have the right to collect sales tax from internet retailers even though they do not have a physical presence in the respective state(s).
The majority of the Court noted the number of people in the United States that have internet are close to 90%, and there are nearly one-half trillion dollars in e-commerce annual (mail order) sales. The Supreme Court then decided to overturn a 1992 decision that held the commerce clause was controlling since it prohibited states from burdening and/or discriminating on interstate commerce. With the current Decision, however, states are no longer barred from collecting sales taxes from companies just because they do not have a physical presence in the particular state. The more than 25 year old Court holding that was overruled required a “substantial nexus” or physical presence to exist with the activity in order for there to be a tax.
The dissent focused on the complex nature of collecting sales tax; the huge number of city, county and state jurisdictions and, therefore, widely varying rates of sales tax; along with the negative impact on commerce as the grounds that weigh heavily against states being permitted to impose sales taxes on internet sellers. The dissent opined this is a matter for the U.S. Congress and not the Courts to decide.
In order to be competitive, some brick and mortar retailers have for quite awhile “matched” the price of online retailers, However, there would remain a savings in not paying sales tax by purchasing on the internet; this savings may soon be history as far more states will be taxing these sales if they have not previously collected that from e-commerce retailers.

US Supreme Court Invalidates Federal Ban on Sports Betting

In the May 14, 2018 case of MURPHY. vs. NATIONAL COLLEGIATE ATHLETIC ASSN., the U.S. Supreme Court held the Federal law that barred sports betting was null and void.

Supreme Court Justice Samuel A. Alito Jr. wrote in the majority opinion: the Federal law was a violation of state sovereignty because it “unequivocally dictates what a state legislature may or may not do.” The Decision is consistent with the Tenth Amendment to the U.S. Constitution because the Federal Government only possesses those powers delegated to it by the U.S. Constitution. As such, all remaining powers are reserved for the states or the people.

Consistent with this Decision, it is anticipated that several states will enact legislation to legalizing sports gambling. There are clearly two sides to legal gambling, but more and more of the focus of proponents now include those States who also seek ways to increase their revenues to offset the escalating budgets from year to year.

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