I recently heard from a colleague from my days as a Bronx prosecutor that I had lost contact with for many years. I was pleased to learn he was doing well and is in charge of a large division of the New York Attorney General’s office’s Medicaid Fraud Control Unit. We got to talking and I realized that in all the years that I have been handling nursing home cases I have never reported a case to law enforcement that involved neglect and/or altered records. I have had many cases where the aides are charting that they provided care when my client is in the hospital or when someone went back and tried to re-create the record to cover up the neglect. I have really considered how criminal prosecution of these transgressions fit in with my representation of the victim.
As plaintiff lawyers, we must consider how the client’s case would be impacted by the involvement of law enforcement. Will the facility withhold discovery because of a criminal investigation? Will witnesses take “the fifth”? If so, how will that impact a case? I can see it as being helpful if a witness takes the fifth on a civil case. On the other hand, a criminal conviction of individuals who work at or operate the facility would likely be very helpful to you case, including the pursuit of the punitive damages.
You might also consider involving an attorney or the Government in bringing a Qui Tam action if you suspect Medicare or Medicaid fraudulent billing. It is my understanding that a Qui Tam action is one brought by a private individual on behalf of the Government under the false claims act found in the United States Code, Title 31, Section 3729, through 3733 (31 U.S.C. Section 3729-3733). The Government may choose the join the action once notified. If there is recovery, the whistleblower can receive 15-30% of the Government’s recovery.
To reach the Attorney General’s Medicaid Fraud Control Unit dial: 1 (800) 771-7755 and press “3” or feel free to ask for my former colleague Thomas O’Hanlon. The link to a form on the Attorney General’s website to report Medicaid Fraud or patient/resident abuse and/or neglect is: http://www.ag.ny.gov/comments-mfcu
It has been approximately two (2) decades since the McDonald’s Hot Coffee case became a part of our consciousness. This case provided the impetus for many people to cry for tort reform. It is the “poster child” of what is wrong with American Jurisprudence.
The documentary movie, Hot Coffee “is Justice being served” discusses the case in detail as well as efforts by big business and the insurance industry to turn the public against our civil justice system. The myths of the case are often repeated and rarely do the facts of the case get reported.
The case involved Stella Liebeck, an elderly (79) woman who in the early 1990’s was a passenger in a car being driven by her grandson. She ordered coffee at the drive thru and they pulled over so she could tend to her coffee. While they were pulled over she spilled the coffee on her legs resulting in severe third degree burns on her thighs, legs and genital area. She was in the hospital for eight days and required skin grafts.
What was not reported was that she sued McDonald’s and asked them to simply pay her medical bills of approximately $11,000.00. McDonalds generously offered $800.00 and the case proceeded through the discovery phase during which Mrs. Liebeck learned that hundreds of people had complained to McDonalds that its coffee was being served too hot and had paid over $500,000.00 for other burn cases. The plaintiff also discovered that McDonalds was serving its coffee approximately ten (10) degrees hotter than other brands because it would improve the taste of the less expensive beans that McDonalds purchased. Clearly McDonalds chose to put profits over people’s safety.
The jury awarded Mrs. Liebeck $200,000.00 in compensatory damages which was reduced by the judge to $160,000.00. She was also awarded $2,700,000.00 in punitive damages which was also reduced by the judge to $480,000.00. The Juries’ rationale for amount of punitive damages award was to penalize McDonalds for two (2) days of coffee sales which amount to approximately $1,350,000.00 per day. Both sides appealed the judge’s decision and the case settled for an undisclosed amount that was less than $600,000.00. I have been told that some portion of a punitive damage award in New Mexico goes to the state, but I have been unable to verify this. The bottom-line is that we now know that she did not collect anything close to what the jury awarded.
As a result of this litigation McDonalds now serves it coffee ten (10) degrees cooler. I have included a picture below of Mrs. Liebeck’s injuries.