Rebecca was a guest contributor to the report and offered her perspective on the litigation climate and the plaintiff attorney playbook used against senior living providers. She provides a valuable look into the plaintiff strategies used in litigation to expand liability exposure to the entire organization.
We are so excited to begin the second year of the Senior Living Empower Hour. The 2023 inaugural year was themed by Enterprise Risk Management. This year, aligning with goals of best practices, proactive risk management and growth and culture change, 2024's SLEH theme is....LEADERSHIP! You'll meet a variety of senior living leaders, experts in organizational leadership and, of course, there will be special surprises! Get ready to learn more about the ability to implement change by creating and communicating a vision! Join us and share in discussing the qualities and skills and the greater scale and scope that organizational leadership delivers.
As the population across the country ages, assisted living is becoming the community of choice for aging in place. Resident care litigation has been emerging with more frequency as the mission and vision of assisted living communities evolve. Person-centered care is a central philosophical aim of the assisted living movement. As in nursing homes, accidents or clinical problems at assisted living centers can translate into liabilities. Many of the losses that drive claims occur during transitions in care from the home to the hospital to the assisted living/memory care and to skilled nursing.
Adelman Law Firm meets the standards of the Metropolitan Nashville Airport Authority (MNAA) policy 3-801 requirements for certification as a Women Business Enterprise (WBE) under the Small, Minority, or Woman-Owned Business Enterprise (SMWBE).
Rebecca was a guest contributor to the report and offered her perspective on the litigation climate and the plaintiff attorney playbook used against senior living providers. She provides a valuable look into the plaintiff strategies used in litigation to expand liability exposure to the entire organization.
We are so excited to begin the second year of the Senior Living Empower Hour. The 2023 inaugural year was themed by Enterprise Risk Management. This year, aligning with goals of best practices, proactive risk management and growth and culture change, 2024's SLEH theme is....LEADERSHIP! You'll meet a variety of senior living leaders, experts in organizational leadership and, of course, there will be special surprises! Get ready to learn more about the ability to implement change by creating and communicating a vision! Join us and share in discussing the qualities and skills and the greater scale and scope that organizational leadership delivers.
As the population across the country ages, assisted living is becoming the community of choice for aging in place. Resident care litigation has been emerging with more frequency as the mission and vision of assisted living communities evolve. Person-centered care is a central philosophical aim of the assisted living movement. As in nursing homes, accidents or clinical problems at assisted living centers can translate into liabilities. Many of the losses that drive claims occur during transitions in care from the home to the hospital to the assisted living/memory care and to skilled nursing.
Adelman Law Firm is committed to social responsibility and community empowerment, both as a corporation and as individuals. We put into practice our belief in long-term social improvement over short-term business financial performance.
Most recently, we discovered RE+NEW+ALL Candle Company and its amazing founder Lee Howard! We are proud to announce our partnership with this Memphis-based, mission-driven retail company. Through its business model, RE+NEW+ALL Candle provides meaningful work in a safe and nurturing environment for women survivors of human trafficking in the United States. All RE+NEW+ALL candles are hand-poured in Memphis by survivors of human trafficking. Each candle is personally signed by the woman who is being restored by your purchase.
In July, the Adelman Firm matched 100 percent the purchase of every Difference Maker candle (btw, a lovely and refreshing white tea scent, we highly recommend it!). Additionally, we also covered the costs of a plate of food at the Empathy Cafe run by Merge Memphis for every Difference Maker candle purchased.
We will continue to find ways to partner with RE+NEW+ALL and hope that you, too, will show your support for this local business and its work to empower and employ survivors of human trafficking.
We’re all in this together! These candles are amazing...please check them out and help change our world, one light, one candle, one person at a time. www.renewallcandle.com
Hello. This is Rebecca Adelman and thank you for spending a few minutes with me.
One of our core values at Adelman Law Firm is to take care of our clients and each other, both in professional and personal capacities. This has never been more important than in the daily challenges we currently face as individuals and in community. I hope that you, your families, colleagues, and communities are well, and I want you to know that we understand that this public health crisis and its related economic effects are disruptive for everyone.
First and foremost, our hearts and thoughts extend out to those who have been affected by this unprecedented event, and we appreciate the healthcare workers, local communities, and governments around the world who are on the front lines working to contain this novel coronavirus.
In this time of concern over COVID-19, it is more important than ever to be proactive, and I am leading my team in taking steps to safeguard our firm team while continuing to protect and advance the interests of our clients. Currently, we’re still working here at our offices in Memphis and remotely, if needed.
At the end of February, I implemented our business continuity plan that includes transition to video-only conferencing, depositions, court appearances and mediations, if necessary.
To further the firm’s commitment to corporate social responsibility, we are partnering with nonprofits, small businesses and women-owned businesses as well as offering support and innovative ways to create value during this time. And I am committed to identifying other opportunities for our team to support and strengthen our community in all ways.
Currently, we are providing meals to a local mission through one of our team members who has an award-winning catering company. We are sewing protective masks from vacuum bags to be distributed to healthcare workers, and we are relying more on our local business partnerships for our firm, family and client needs.
I am offering complimentary education, legal, advisory, crisis planning and risk mitigation resources and services for crisis solutions related to COVID-19 in healthcare, employment, and other issues so please contact me directly if any of that pertains to your situation.
I also am curating mental wellness resources, including mindfulness and self-care tools, for our team, clients and community; if you’re interested in receiving those, please let me know.
We are here to offer peace of mind.
Stay tuned for the inaugural The Adelman Advantage Podcast being directed by our own John Woods, attorney and former radio broadcaster. John and I (and team members) as well as special guests will bring relevant (and also some fun) content about a myriad of subjects directly from our beautiful offices at Central Station in the South Main Historic District in Memphis, Tennessee. Please plan to link to the firm’s website and listen!
Please stay safe. Stay well. Take care of yourself and each other.
Sincerely,
P.S. For our clients: Expect a call from me in the coming days for a general check–in and to see whether you have specific questions, concerns, or needs.
BY: REBECCA ADELMAN
Cyber attacks on health care organizations have increased in recent years. According to expert reports, health care organizations suffered the highest number of data breaches in 2018 - more than any sector in the U.S. economy. You may be aware of “ransomware” attacks on hospitals and health care providers.
For example, DCH Health System in Alabama paid an undisclosed ransom to hackers to unlock its IT system after three of its hospitals were attacked in October. The affected hospitals turned away new patients and canceled several scheduled surgeries.
Protected Health Information (PHI) of more than 300,000 patients of the physician group Premier Family Medical in Utah was compromised in a ransomware attack in September. The incident barred access to patients’ data and other network systems.
Hackers infected Grays Harbor Community Hospital and Harbor Medical Group with ransomware and demanded a payment of $1 million to unlock patient files. Washington-based hospitals also faced downtime issues. According to the reports, the attack was triggered after an employee clicked on a malicious link containing ransomware.
Around 120,000 Health Alliance Plan patients’ personal and medical data breached after a ransomware attack hit its third-party vendor Wolverine Solutions Group. The compromised data included patients’ names, addresses, dates of birth, Social Security numbers, insurance contact details and numbers, medical data and phone numbers.
A ransomware outbreak has besieged a Wisconsin based IT company in November that provides cloud data hosting, security and access management to more than 100 nursing homes across the United States. The ongoing attack is preventing these care centers from accessing crucial patient medical records, and the IT company’s owner says she fears this incident could soon lead not only to the closure of her business but also to the untimely demise of patients.
Virtual Care Provider Inc. (VCPI) provides IT consulting, Internet access, data storage and security services to some 110 nursing homes and acute-care facilities in 45 states. All told, VCPI is responsible for maintaining approximately 80,000 computers and servers that assist those facilities. Click here for the full story that is worthy of reading for all long-term care providers and their IT service companies.
Why are health care organizations considered to be easy targets? They frequently don’t have the elaborate network security and backup systems that are the norm at larger companies. Health care, in general, tends to lag behind other consumer sectors in terms of IT sophistication, even more so in long-term care.
Given the rise in ransomware attacks, it’s vital that your long term care organization start preparing now. Here are three vital steps:
Educate yourself about the risks. The rate of attacks is growing rapidly and health care companies are in the crosshairs. Don’t wait until it’s too late to protect your company.
Ensure your IT organization has a defense plan. Comprehensive backups at the most useful protection, but your IT organization should have a detailed plan for protecting individual PCs and users. A strategic plan for shutting down an attack should one occur is recommended as well.
Educate employees about the dangers. Employees are often weak links in the security chain. Educate your staff about the risks of opening email attachments and links, installing questionable software or providing sensitive information to anyone via email.
Several new laws took effect in Mississippi in 2019, including one that increases teachers’ pay and two that are designed to ease burdens on those who face court fines or are trying to find employment after a criminal conviction.
Here are some of the measures passed by the Legislature and signed by Governor Phil Bryant:
House Bill 1352 eases penalties on some Mississippians accused or convicted of crimes. It stops the automatic suspension of driver’s licenses for non-payment of fines or drug possession and creates ”intervention courts” to handle cases involving veterans, drugs and mental health issues.
Senate Bill 2781, named the “Fresh Start Act of 2019,” says a criminal conviction does not disqualify people from receiving a job license unless the conviction was directly related to the job for which the license is required. Groups that issue job licenses are banned from using phrases such as “moral turpitude.”
Senate Bill 2770 authorizes a $1,500 pay raise for teachers.
Senate Bill 2901, called the ”Landowners Protection Act,” says that anyone who owns, leases, operates or maintains commercial property in Mississippi will not be liable for any injury on the property caused by another person, unless the person in charge of the property did something that “impelled” the harmful action. Supporters say the new law will provide financial protection for property owners or managers, while critics say it could lead to negligence.
House Bill 571 prevents charges from being filed against trafficking victims who are younger than 18 years old. The minor would be taken into protective custody and provided counseling. Foster parents would be trained to help trafficking victims.
Senate Bill 2141 creates a new felony of making a terroristic threat and is punishable by up to 10 years in prison.
House Bill 1581 clarifies an existing law about guns in courthouses – guns may be banned in courtrooms, jury rooms, witness rooms and judges chambers but may not be banned in hallways, on courthouse grounds or other areas in or around a courthouse that are generally open to the public.
House Bill 390 says retired law enforcement officers may work as security for churches or other houses of worship and may be immune from civil lawsuits in that role.
House Bill 1283 requires public schools to conduct active shooter drills.
House Bill 1182 bans corporal punishment for any student who has a disability or a special education plan.
House Bill 761 bans the state of Mississippi from investing in companies that boycott Israel.
BY: ORMONDE LANDRY PAYNE
Tennessee’s damages caps are on thin ice this winter as the Tennessee Supreme Court is considering if the statute capping non-economic damages is unconstitutional. The Tennessee Civil Justice Act, passed by the state legislature in 2011, includes caps on non-economic and punitive damages. The constitutionality of the damages caps has been routinely challenged by plaintiffs’ attorneys since inception of the Civil Justice Act. The constitutional challenges have gained recent traction, with the Sixth Circuit Court of Appeals opening that the cap on punitive damages was unconstitutional in December 2018, although without a ruling on the issue by the Tennessee Supreme Court. The Sixth Circuit ruling was binding authority in federal courts within the Sixth Circuit but not in Tennessee state courts since it was a federal court decision on a purely state-law issue.
In June 2019, the Tennessee Supreme Court accepted a federal district court’s request to issue an opinion on the constitutionality of the non-economic damages in the case of McClay v. Airport Management Services, LLC following a post-verdict challenge to the caps. Jodi McClay, a California resident, stopped by the Hudson News Shop in the Nashville airport to buy bottled water prior to boarding her flight. When she closed the door to the cooler, a 5-foot long piece of trim that was leaned against the bottom of the cooler fell and crushed her ankle. A jury in the federal district court ruled in Ms. McClay’s favor, awarding her $444,500 in economic damages consisting of medical bills and lost time from work and $930,000 in non-economic damages for continued pain and suffering, loss of work opportunities and diminished quality of life. Defense counsel insisted the federal judge hearing the case apply the $750,000 damages cap in place of the jury’s verdict. Ms. McClay’s attorney argued that the cap is unconstitutional.
The Supreme Court heard oral arguments on Sept. 4, 2019. Some cases heard in May 2019 are still pending ruling, so it could be several months before a ruling is issued in McClay. Statistics raised during the oral argument to the Supreme Court show that 31 states have passed some sort of caps on damages in recent years. Of those, 20 have been upheld as constitutional while 11 have been struck down. The last four cases challenging damages caps found the caps unconstitutional.
We at Adelman Law Firm are monitoring the Supreme Court’s rulings as plaintiffs’ attorneys in Tennessee add “no limits on damages” to their holiday wish lists. It’s safe to say we’re all anxiously awaiting the Court’s decision, which will be binding on all state and federal cases involving Tennessee law.
On July 1, 2019, Tennessee’s Amusement Tax on small gyms was repealed, tearing down a sizeable obstacle to Tennesseans’ ability to get physically fit. The widely-discussed Amusement Tax applied sales tax to small, boutique firms but not their “big-box” competitors. The tax began in 1986 when a carve-out was tailor-made for a big-box gym competing against a non-taxed YMCA in Chattanooga, Tennessee. That carve-out exempted the big-box gym and others like it from the sales tax but left sales tax in place for small gyms. Over the next 30 years, no one in Nashville seemed to notice that many new boutique fitness studios weren’t collecting the tax.
Then, in June 2018, the Tennessee Department of Revenue issued Notice #18-09 and signaled its renewed intent to seek sales tax from those fitness studios that did not meet the 1986 statute’s provisions:
One full-time employee certified in administering health assessments or state-licensed paramedic;
Open 70 hours per week;
At least 15,000 square feet in use
Offer three or more of either (a) health assessments including blood chemistry and urinalysis, (b) racquetball, (c) exercise equipment, (d) track or swimming; and (e) aerobics.
CrossFit, OrangeTheory, barre, spin and yoga studios immediately began a grassroots campaign to end the unfair head-start given to big-box gyms. Starting July 1, your community fitness studio should have started giving your wallet a break, even if it takes a pound of your sweat instead.
The Tennessee Supreme Court agreed in June to hear a challenge to the constitutionality of a Tennessee law that requires judges to override jury awards in civil lawsuits. Hudson News Shop, the ubiquitous pit stop for frequent fliers found in airports across the country, had bad news to report in 2006. While in one of their shops in Nashville, Tennessee, a California resident’s foot was injured when a decorative piece of trim around a freestanding beverage cooler fell on it.
While the resident still caught her flight home, she would later sue, in a case that would last until 2018 and include a $444,500 economic damage award and a $930,000 non-economic damage award. After the verdict, the Defendant asked that the state’s statutory cap on noneconomic damages be applied, limiting recovery to $750,000. The plaintiff objected, making the same argument – which found favor with the Sixth Circuit only sixth months ago – that such a cap violates a plaintiff’s right to trial by jury and violated the doctrine of separate powers.
The District Judge noted Tennessee’s high court remained silent on the constitutionality question and asked the Tennessee Supreme Court to break that silence before he rendered a decision. The court agreed to do so and specifically directed the state attorney general’s office to participate. A hearing date has not been set yet. It may be December before we get an answer to cap or no cap.
Mental health is just as important as physical health! Our owner and founder Rebecca Adelman was featured in Thrive Global, giving tips on how to improve mental stamina to reach your goals and aspirations. Way to go, Rebecca! You can check out the article here.
May 5-11, 2019 was National Small Business Week. To celebrate, Obsidian Public Relations asked Adelman Law Firm’s own Rebecca Adelman to guest star on its podcast, Off the Rock, On the Record.
Rebecca Adelman guest starred on The Multiplier Mindset Podcast with Dan Sullivan.
“Rebecca Adelman, now head of her own law firm, came to realize that all the hurdles she’d faced over 30 years as a woman in a male-dominated industry had take a toll. She knew what she wanted: entrepreneurial fellowship. She found it, and it changed her life.”
Adelman Law Firm, Horne Roota Moos LLP and Kaufman Borgesst & Ryan LLP for networking, blues, BBQ and everything Memphis has to offer! This year’s conference will take place in the historic Peabody Hotel. Enjoy your stay in its newly renovated rooms and the magnificent rooftop Skyway, where the conference will take place. Please reserve your room no later than Friday, March 15, 2019. To make your reservation, call 1-800-PEABODY (732-2639). You must identify the group name - Long-Term Care Summit - to receive the conference rate ($219 per night for single/double occupancy). You may also click here to book with the conference rate online.
This year will feature a marketplace of local vendors for you to peruse in between sessions! For a complete list of vendors and to view the conference website, click here.
Click here to view this year’s agenda.
We look forward to seeing you there!
Adelman Law Firm is proud to receive the National Women’s Business Enterprise certification. WBENC is the largest certifier of women-owned businesses in the U.S. and a leading advocate for women business owners and entrepreneurs. This certification validates that the business is 51 percent owned, controlled, operated and managed by a woman or women and is the most relied upon certification of women-owned businesses. Adelman Law Firm is excited to engage and partner with WBENC and other certified businesses and salutes the theme: #JoinForces.
In a recent decision by the Tennessee Supreme Court, the Court overruled the previous test used to determine whether an exculpatory clause is enforceable. After reviewing the lengthy history of Tennessee appellate court decisions regarding the enforceability of exculpatory clauses, the Court found that the Olsen test, which was reiterated last in an opinion in 1992, was an outdated test now only used by the minority of states. In following the lead of the majority of states, the Court implemented a new method for determining whether an exculpatory clause is unenforceable. The Court held that the enforceability of exculpatory agreements should be determined by considering the totality of the circumstances and weighing non-exclusive factors of (1) the relative bargaining power of the parties; (2) the clarity of the exculpatory language, which should be clear, unambiguous and unmistakable about what the party who signs the agreement is giving up; and (3) the public policy and public interest implications. The Court went on to hold that there is no professional services criterion restricting the application of this new holding to contracts for professional services, which had previously been a restriction. The Court went on to described and provide additional guidance for the application of the three factors.
In the case at issue, a rehabilitation hospital hired a medical transportation company to take a patient to a doctor’s appointment. Before the transport, the company’s driver required the patient to sign an exculpatory agreement which, in part, released the company from any liability. The patient fell when entering the vehicle after leaving the doctor’s appointment and subsequently sued the transportation company. In utilizing the newly held test, the Court found that the exculpatory agreement was not enforceable. The patient had an inferior bargaining power as he was a patient in the hospital, had no control over which company was chosen by the hospital and needed to get to his doctor’s appointment without another readily available option for transportation. The Court further found that the language of the agreement was misleading and specifically, a portion of the agreement referenced a release from ALL liability which is not proper as an exculpatory clause cannot absolve a party from liability related to gross negligence, intentional conduct, etc. Lastly, the Court looked at the public policy implications. The Court held that the transportation company was in a position of greater responsibility to the patient and that the patient had mere minutes to read the agreement and did not have the option of rescheduling, etc. The Court equated this situation as similar to the public policy considerations held for clients of professionals, residential tenants, employees and bank customers who are protected from exculpatory provisions and found that the agreement was contrary to the public interest. Based on these findings, the Court ruled that the exculpatory clause was not enforceable. Based on the Court’s holding, it is unlikely that exculpatory clauses related to healthcare, even transportation for medical appointments, will be enforceable.
