Also Ordered to appear is Dr. Gene Musser, Chairman of the Wisconsin Medical Examining Board. He has been ordered to explain the details of the investigation by the Board, and what information the Board still needs to complete its investigation, should it request additional information.

The show cause Order has many implications beyond this particular case.  Presumably, the Board will now have to explain the reasons it may take upwards of 10 years for it to discipline a doctor found to be negligent.  It will also have to explain the steps it takes and the timeframes involved in its investigation of Wisconsin doctors accused of malpractice.  Some predict that what is lingering behind is the scenes is a Board that wants to protect its own doctors.  Other predict is simply a case of budge constraints and the limited capabilities of the Board.  Either way, the Order will allow the public a glimpse at how Wisconsin doctors are disciplined, and hopefully provide more transparency for patients to choose skilly doctors.

Both Kelly Sankbiel and Dr. Gene Musser will appear before Milwaukee County Circuit Court Judge Thomas Cooper on August 13th, 2010 at 10:30 A.M to respond to the Order.  The hearing is open to the public.

In 2004 Ken Plants filed a medical malpractice action against Dr. Cully White alleging Dr. White operated on the wrong side of his spine, causing severe and permanent nerve damage.  The lawsuit also alleges Dr. White billed for a surgery ($7000) he did not perform and subsequently lied to Ken Plants about the surgery.  The lawsuit settled in August 2009 for 2.9 million.  Ken Plants refused a confidentiality clause that would have made the terms of the settlement confidential.

The writ targets the Medical Examing Board, which has the responsibility to “investigate allegations of unprofessional conduct in a reasonable time.”  Despite hand delivering every possible piece of evidence to the Board, the Board has not provided Plants or his attorney with investigation materials, or even if the investigation has begun.  The writ demands the Board do the following: 1) provide the petitioner with the Board’s report generated in this matter; 2) if not report has not been generated, an update on actions in furtherance of a report; or 3) how the Board intends to complete its report and when.

This Writ follows an interview with ABC 12 last Fall where the Board admitted that it takes 4, 5, or even 6 years for the Board to take any action following settlement or trial involving medical malpractice.  A typical medical malpractice case takes about 3 years to settle or go to trial.  It then takes 4-6 years before the Board takes any action against the doctor.  Essentially, it could take upwards of 10 years before a doctor is disciplined by the State of acts of negligence.  Prospective patients have absoulutely no way of knowing a doctor they are choosing is being investigated during that 10 year period. The writ appers to force the Board to provide greater transparency and actually carry out the Wisconsin statutes aimed at protecting the citizens of Wisconsin.

This is welcome news to most patent applicants and practitioners. As I’ve previously written, Director Kappos made it a high priority to change a system and culture that equated higher rejection rates with higher quality patent examination. It appears that Director Kappos’ reforms are working.

The Milwaukee Journal Sentinel recently reported on how the combination of patent office backlog and high rejection rates costs the U.S. economy at least $6.4 billion a year due to lost investment, economic growth, and potential employment from lack of meaningful protection for new innovations. An increase in patent allowance and issuance could help reduce patent office backlog, increase domestic innovation and investment, and spur economic growth. But if that happens, don’t expect the patent system to get much credit from the pundits and politicians.

The CPSC (Consumer Product Safety Commission) recently recalled the dart guns to prevent further sale of the item and further asphyxiation deaths.  Interestingly enough, it appears that Family Dollar was the company that worked with the CPSC to see the item to recall - not the manufacturer nor the distributor.  While noble, this does not absolve Family Dollar from a Wisconsin products liability action.  In Wisconsin, every person or entity in the chain of distribution is liable for the defective and unreasonable dangerous product.  This includes the manufacturer, the distributor and the end seller.  Allowing the injured party to recover from anyone in the chain of distribution has two positive effects on consumers: 1) it increases the likelihood that there will be a party to recover from in the event the product in manufactured overseas or by a defunct company; and 2) it makes end sellers more cognizant of the products they buy, thereby eliminating or reducing the ”junk products” that make their way to consumers.

Products liability actions are often very difficult to prove and also very expensive.  They often require hiring an expert to state that the product is defective and unreasonably dangerous.  They also require an expert doctor to opine on the injuries or death of the injured party. 

Although the injuries are different, this product recall is eerily similar to the MTD Recalls I have previously written about on this site and am currently handling for the Warshafsky Law Firm.  Both involve a defective product recalled by the CPSC that remains in the general public causing injury to users.  Those injured by defective products should contact an attorney experienced in handling products liability actions immediately to preserve their rights.

Generally speaking a party suing your business, if they obtain a judgment against your business, is going to be able to collect against the assets (or at least the unsecured assets) of your business.

This can vary from getting a receiver appointed to force the liquidation of company assets, to freezing business bank accounts, or even having the Sheriff go in and collect cash directly from the cash register to help satisfy the judgment. Thus, if your business has more value in assets than the potential judgment amount, it may be worth contesting the lawsuit or trying to reach a settlement. If not, then you can explore whether you can simply close up shop and move on.

Under Wisconsin law you are not allowed to simply close up shop and raid all of the assets of the business just to avoid a creditor. Neither are you allowed to sell all of the assets to a friend or relative (or anyone for that matter) for a severe discount just to avoid creditors. For example, if your business was Bob’s cleaning Company Inc. and your business were sued, you cannot simply sell all of your business assets to your brother for $1 and open up Joe’s Cleaning Company Inc. This would be known as a “fraudulent transfer” and is covered by Wis. Stat. Section 242.04

242.04 Transfers fraudulent as to present and future creditors.

(1) A transfer made or obligations incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:

(a) With actual intent to hinder, delay or defraud any creditor of the debtor; or

The statute provides some guidelines for determining “intent to hinder, delay or defraud any creditor of the debtor.” Some of those include:

• The transfer or obligation was to an insider;
• The debtor retained possession or control of the property transferred after the transfer;
• Before the transfer was made or the obligation was incurred, the debtor had been sued or threatened with suit;
• The transfer occurred shortly before or shortly after a substantial debt was incurred; and
• The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

Additionally, it is considered to be a fraudulent transfer if the transfer is made:

242.04(1)(b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
2. Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.

Not only does this statute prevent you from intentionally disposing of assets to avoid creditors, it also raises issues if you are intending to legitimately sell your business’s assets and you have been sued or you have outstanding creditors. You need to ensure that the transfer cannot be categorized as a fraudulent one.

In any event, if you or your business is sued it is best to immediately see a lawyer who can explore your options with you. If you play your cards right though, one of those options may be to simply close your doors and move on to your next, hopefully more successful, venture.

These MTD products liability claims are very unique in that the injuries are usually limited to broken hands and fingers.  The limited damages make these claims very difficult, if not outright cost prohibitive, for a firm to handle.  For example, suppose the claim is worth around $30,000.  It may cost upwards of $15,000 to hire a plastics expert to provide a favorable opinion.  After a fee and recouping costs, the claim is hardly worth pursuing for the client.

The Warshafsky Law Firm has handled close to nearly 10 claims against MTD and is currently working on at least 5 others, most from referring attorneys.  Bunching these MTD claims together to spread-out the costs has been effective in maximizing recovery for the client.  As the snow melts around the country, these claims may melt away as well.  But history as shown us that these products are still out in commerce and are still exploding at alarming rates.  If you or anyone you know has been injured by MTD products, Warshafsky Law Firm is interested in hearing about your experience.

Wisconsin legislators are considering enactment of a bill, 2009 Assembly Bill 894, that prohibits workplace bullying by employers.

The bill seeks to prohibit abusive work environments in Wisconsin, and to allow a worker subjected to such an environment to bring a civil legal claim.

Importantly, a civil claim would be filed in a Wisconsin county court, as opposed to federal court or an administrative agency like the Wisconsin Equal Rights Division or EEOC (i.e. agencies that handle discrimination complaints).

This post summarizes the bill, its legal requirements, its potential benefits for WI employees, and potential liabilities for employers.

• Prohibited Employer Conduct: Abusive Conduct that Causes An Employee Tangible Harm. The bill prohibits Wisconsin employers from directing “Abusive conduct” toward any employee that causes the employee “Tangible harm.” (When an employee is subjected to abusive conduct that causes tangible harm, this constitutes the so-named “Abusive work environment” that would be legally prohibited– if the abusive conduct is an isolated event and not severe, or if the abusive conduct does not cause tangible harm to an employee, there would be no legally-actionable “Abusive work environment”).
  • “Abusive conduct” is defined to include “repeated infliction of verbal abuse such as derogatory remarks, insults, and epithets; verbal or physical conduct that is threatening, intimidating, or humiliating; sabotage or undermining of an employee’s work performance; or exploitation of an employee’s known psychological or physical vulnerability.”
  • “Abusive conduct,” according to the bill, “does not include a single act unless that act is especially severe or egregious.”
  • Abusive conduct is legally prohibited, and provides basis for a legal claim, if it causes any employee to suffer “tangible harm.”
  • “Tangible harm” is defined as “any material impairment of a person’s physical or mental health or bodily integrity.” (In other words, an employee found to be unlawfully abused would likely have shown medical evidence of physical or psychological injuries– e.g. medical records showing conditions such as anxiety diagnosis, heart problems, etc., that a health professional attributes to the employer’s abuse).
• Retaliation is also prohibited. An employee can bring a legal claim if the employer retaliated against the employee because he or she:
  • opposed an unlawful employment practice (e.g. the employee was fired because she told the employer she opposed its abusive conduct toward other employees);
  • initiated, testified in, assisted in, or otherwise “participated in an investigation, action, or proceeding to enforce a right under this section, including any internal investigation or proceeding, any mediation or arbitration proceeding, or any court action.”

• One-Year Deadline/Statute of Limitations. There is a one-year deadline for an employee to bring a legal claim.  This deadline period starts ticking “one year after the last act constituting the unlawful employment practice occurred or be barred.”  (From this language, it appears this would be a continuing-violation type claim, in which a complaint timely filed within one year of the last act would claw back to cover prior associated/continuous acts).
• Relief/Legal Awards. Relief (legal awards) to an employee could include:
  • The court enjoining the employer or abuser-employees from engaging in abusive practices;
  • reinstatement of the aggrieved employee who had been subject to abuse and discharge/demotion/etc.;
  • removal of the person who engaged in the abusive conduct giving rise to the unlawful employment practice from the aggrieved employee’s work area;
  • medical expenses;
  • back pay;
  • front pay;
  • compensation for emotional distress;
  • punitive damages; and
  • reasonable costs and attorney fees.

• Personal Liability. Abusive employees could be sued in their personal capacity, along with the employer, although there are potential limitations and affirmative defenses (see below).
• Affirmative Defenses. Accused employers and accused abuser-employees would have affirmative defenses to avoid or reduce liability.  These include affirmative defenses:
  • where the employer exercised reasonable care to prevent and promptly correct the abusive conduct at issue;
  • where the aggrieved employee unreasonably failed to take advantage of appropriate opportunities provided by the employer to prevent or correct that abusive conduct;
  • where an adverse employment action against the aggrieved employee (e.g. discharge) and the employee’s complaint is actually based on poor performance, a reasonable performance evaluation, misconduct, economic necessity, and/or a reasonable investigation of a potentially illegal or unethical activity by the employee;
  • where an employee who is alleged to have engaged in an unlawful employment practice (e.g. a manager accused of abusive conduct) may plead as an affirmative defense that the employee engaged in that practice at the direction of the employer under threat of an adverse employment action against the employee for not engaging in that practice.  (This particular affirmative defense would help the accused abusive-employee avoid personal liability, but would not help the employer giving abusive directives to avoid liability).
• Right to Jury? It appears that claims and relief could be decided by a judge rather than a jury, given the bill’s frequent references to a “court” deciding relief.
• Limited Relief Where No Adverse Employment Action. If an abused employee, despite suffering “tangible harm,” does not also suffer “an adverse employment action” (namely, discharge, demotion, suspension, or other form of pay loss), then “the employer’s liability for compensation for emotional distress may not exceed$25,000 and the employer is not liable for punitive damages.”

• No Preemption By Workers Comp Laws. The bill explicitly says that workers comp law would not preempt (block) these new bullying-law claims; workers comp law has, in general, traditionally barred other (non-workers comp) claims involving emotional or physical injuries caused by work or by an employer.  The new WI anti-bullying-law claims could be pursued along with a WI workers comp claim, although the award for the anti-bullying claim could be reduced based on a workers comp award.  This would limit double-dipping that could have otherwise resulted from pursuing both types of claims/legal theories.

This completes the summary of the bill.   It should be interesting to see what happens with it.

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

Technorati Profile

Bob Uecker is the radio broadcaster for the Milwaukee Brewers. In June 2006, Mr. Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ann E. Ladd alleging that Ms. Ladd, a self-described “devoted fan,” had continually harassed and stalked him for a period of years.

Mr. Uecker filed an affidavit in support of his allegations. According to Ms. Ladd, Mr. Uecker and/or the Milwaukee Brewers posted his affidavit to a website called thesmokinggun.com, on June 2, 2006. On September 8, 2008 Ms. Ladd filed a complaint alleging, among other things, that Mr. Uecker and the Brewers defamed her by posting the affidavit to that website.

An action to recover damages for a defamatory communication is barred if not commenced within two years after the cause of action accrues. WIS. STAT. § 893.57. After a hearing, the circuit court concluded that Ms. Ladd’s claims for any matters occurring before September 7, 2006 were barred by this statute of limitation. She appealed, arguing that her cause of action renewed every time someone accessed the information online.

The Wisconsin Court of Appeals disagreed. Said the court:

We hold that “republishing” the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations. Uecker and the Brewers have no control over other websites’ use or dissemination of the same information on the World Wide Web. We reject the notion that each “hit” or viewing of the information should be considered a new publication that retriggers the statute of limitations.

 This decision brings Wisconsin in line with other jurisdictions that have adopted the single publication rule. The rest of the decision is not particularly ground-breaking, but does serve as a useful outline of Wisconsin law regarding defamation and invasion of privacy, and the various privileges and defenses to such claims.

In the world of sports and entertainment, the celebrity is usually the party claiming to have been defamed – so in that sense this is not a decision about which artists and athletes are likely to be cheering. In today’s online world, however, the decision makes eminent sense.

I thought we would stop seeing these cases as the product faded from the marketplace, MTD sent out replacements and consumers stopped using the product.  However, reports of injuries from these MTD products are continuing to arise even though we are 4-5 years post-product recall.  The Statute of Limitations for a negligence and/or product liability claim such as these is 3 years from date of injury.  So, assuming the product was recalled in 2006 and manufactured even earlier, consumers still have a claim against MTD for 3 years from date of accident.  Whether the injured consumer owns the MTD snowblower, rented the MTD snowblower or even borrowed the MTD snowblower, the injured party should contact an attorney immediately to assist them with their claim against MTD.

If you or someone you know has an MTD snowblower that falls within the scope of the CPSC recall and the product has not yet exploded, I urge you to contact MTD to discuss getting a replacement before someone gets injured.

A plaintiff’s attorney accepting any malpractice case must be prepared to outlay upwards of $50,000 in costs to see the case to trial.  This, along with countless attorneys’ hours, is the true price of bringing a claim that, statictically speaking, juries dont like.  Defendant doctors, or more accurately, their insurers, typically do not negotiate settlements until the eve of trial, if ever.  This means the plaintiffs’ must endure the cost of hiring expert after expert and be prepared to bring that expert into to court.  Together, these factors make the “minor” medical malpractice claims impracticable to pursue, and the major cases a huge risk for the Firm.  In larger, complex cases, the $750,000 cap can work towards making a claim financially unfeasible for the attorney and client if the price tag of experts becomes too costly.

Attorneys “dabbling” in plaintiffs medical malpractice should be very leary of these realities when screening potential new cases.  The Warshafsky Law Firm employs a full-time M.D./J.D to do medical malpractice new case screenings and reviews.  Unfortunately, having a Doctor or Nurse on staff has almost become a necessity to practice plaintiffs medical malpractice given the tough litigation climate.

The scary aspect for consumers is that claims are down in Wisconsin likely because of litigation truths, not because Wisconsin residents have enjoyed an increased standard of care from physicians and hospitals.