Realworldautomotive – a new resource for consumers

Posted by Sergei Lemberg, Esq. on November 26th, 2009

Just stumbled on a new resource for auto-related information and wanted to bring it to the attention of my readers. Alex Steele, a well-known writer on auto-related topics just launched http://www.realworldautomotive.com/  and now provides professional answers to auto repair questions.  RealWorldAutomotive.com is a network of consumer-technical car and truck information.

 

The site has an archive of auto repair questions and answers by an ASE certified master technician/journalist, plus a variety of articles which are more than relevant to automotive consumers, plus access to important data and expert opinions on reliability, maintenance, fuel economy, and other significant topics to help car owners stay on top of their investment.

 

Included are forums by make, model and subcategories to discuss anything automotive with people like you, and qualified on-staff technicians.  The site aims to provide unbiased, real-world automotive information.  Visit http://www.realworldautomotive.com/questions-and-answers/ for a quick bio of Alex, .realworldautomotive.com/shoptalk-questions-2007-gmc-sierra-power-steering-noise-tsb-t484.html for an example of a recent Q&A post.

 

 

Perspectives on the Government Bailout

Posted by Sergei Lemberg, Esq. on November 15th, 2008

Warren Kirshenbaum from O’pen Mind is sitting in the guest blogger’s chair today, helping to make sense of the government’s $700 billion bailout. Warren is a Needham real estate attorney whose practice focuses on residential and commercial purchases and sales, commercial leasing, and development. He can be reached at Orsi Arone Rothenberg LLP, 160 Gould Street, Suite 320, Needham, MA 02494. Thanks, Warren!

In a time of economic uncertainty our government is being pushed into an interventionist role in the private marketplace, and while our lawmakers are working fastidiously toward an appropriate response, the legislation being passed is complex and multi-faceted, yet thinly worded and correctly, but hastily considered.

On October 1, 2008, the U.S. Senate passed the Emergency Economic Stabilization Act of 2008, also known as the Troubled Assets Relief Program (“TARP”). It includes the following:

  • An increase in the statutory limit of the public debt to $11.3 trillion;
  • A US Government purchase of “troubled assets” in the order of $700 billion, funded by the issuance of treasury securities pursuant to Title 31 Ch. 31 of the US Code;
  • An equity stake in financial institutions that sell their troubled assets to the Government;
  • Foreclosure mitigation efforts;
  • Executive compensation and corporate governance standards for sellers of “troubled assets,” such as a limitation on golden parachutes and claw-backs on compensation based upon materially inaccurate information;
  • A temporary increase in FDIC protection to $250,000 per applicable account;
  • A patch for the alternative minimum tax and extensions for the wind energy production tax credit, the new markets tax credit, and the investment tax credit for solar energy projects; and
  • Authority for the SEC to suspend the application of Financial Accounting Standards Board Statement 157, which is the “mark-to-market” accounting standard (“MTM”) adopted after the S&L collapses of the 1990’s. MTM forces financial institutions to value assets based upon their market value, rather than their purchase price.

The proposed easing of the MTM rules is a challenging issue, and one that requires deep thought and discussion. MTM has required write-downs that may approach $1 trillion due to the deterioration in value attributed to mortgage backed assets. Proponents of the suspension of MTM argue that these write-downs have precipitated the market woes we now face. Regulators favor the easing of the MTM rules, as it would lessen the cost of the bailout proposed by TARP, while opponents argue that the current crisis is one of confidence due to overvaluations. Specifically, valuing mortgage backed assets based upon purchase price would lead to illusory balance sheet values and resulting confidence issues. In considering this issue, it must be noted that Wachovia was to be purchased by Citibank for only $2 billion when it collapsed, yet it had an asset value of $75 billion.

The underlying goal of TARP seems to be to spend $700 billion to inject confidence into the marketplace. TARP essentially transfers the “troubled assets” to the U.S. Government, the only entity currently strong enough to hold these assets until a market for them recovers. TARP swaps toxic paper for cash loaned to the U.S. Government by foreign and U.S. investors. The hope is that this will lead to an easing of the credit-crunch we are now facing. But will it?

In the short term, cash-rich financial institutions may still be uncomfortable lending that cash to consumers and businesses, unless confidence, arguably the underpinning of our markets, makes them loosen up some capital. This so-called credit crisis may be more appropriately termed a confidence crisis, if not a loss of trust in the financial engineers of our economy. TARP is about restoring trust and confidence, but it proposes spending upwards of $700 billion to do that. Impossible as it seems to value the cost of the “troubled assets” that now have no market, the market is marking TARP with a cost of no less than $700 billion, and it would be remiss to consider easing up those mark to market valuation rules.

Doctors & Hospitals: Nine Tips You Can’t Live Without

Posted by Sergei Lemberg, Esq. on November 13th, 2008

Brian Wilson has provided us with this timely information on ways to keep you and your loved ones safe when you’re dealing with doctors and hospitals. Brian is a partner in Nicodemo and Wilson LLC in Canton, Ohio, and has investigated and prosecuted numerous medical malpractice cases over the past 20 years. Go to www.n-wlaw.com or check out their blog www.nwbullseye.blogspot.com for more information. Thanks, Brian!

As attorneys who investigate and prosecute medical malpractice cases, friends, neighbors, and even family often ask us for advice about avoiding medical mishaps. The first thing I typically say is that the odds are in your favor. Thankfully, most physicians and hospitals do a fine job of taking care of their patients.

But we’ve learned some medical secrets over the years that are definitely worth sharing, and they just might make your medical encounter a safer one.

1. “Will You Take My Picture?”

Over 600,000 people per year in the U.S. have high tech gallbladder surgery with a scope (known as a laparoscope). It is a relatively safe procedure, but there is one SERIOUS complication you need to be aware of.

One of the most devastating injuries that can occur during gallbladder surgery is the surgeon cutting the patient’s common bile duct, which serves as the “highway” between the liver and the stomach for transporting bile. When this occurs, the surgeon has mistakenly cut the common bile duct instead of the cystic duct. The cystic duct, which is the “exit ramp” on the duct highway and which connects the gallbladder, should be cut. The common bile duct – the main highway – should NEVER be cut or damaged. Common bile duct injuries require major reconstructive surgery and can cripple a person’s ability to move bile, which can damage or even ruin the liver.

There is a valuable tool for identifying the anatomy of the bile duct system, particularly the differences between the common bile duct and the cystic duct. It is called a cholangiogram, which is simply an x-ray exam of the bile ducts taken during surgery after dye is injected into the duct. The purpose of this simple x-ray is to help the surgeon identify the bile duct anatomy before anything is cut or removed, and it will even show if a patient’s bile duct anatomy is different than normal.

So, if you are having laparoscopic gallbladder surgery, you should ask your surgeon: “If there is any doubt in your mind as to what you are cutting, will you take an x-ray picture to make sure before anything is cut?”

Although most surgeons do not perform cholangiograms in every surgery, they SHOULD perform one (it takes about 20 minutes) if they are not completely sure of the anatomy of the bile duct system. Any good surgeon should be willing to explain under what circumstances he or she will use a cholangiogram or take other safety steps to avoid a devastating bile duct injury. And if the surgeon is put off or offended by your question and your medical knowledge, get another surgeon!

2. Beware of Ghosts . . .

You meet with a surgeon you come to know and trust and he or she explains what is going to happen during the surgery. However, after the surgery, you find out that while you were under anesthesia, your surgeon handed off the scalpel to a resident surgeon in training. Or, equally as bad, he or she left the room to start three other surgeries, and handed your surgery off to a partner, associate, or even a resident. Of course, you’re told none of this before the surgery.

The American Medical Association coined this practice “ghost surgery.” It happens more than you think, and it happens more often in teaching hospitals. In fact, in 1995 the Cleveland Clinic was sued when an ear, nose, and throat surgeon (who had four surgeries scheduled AT THE SAME TIME) allowed a resident to perform nasal surgery and the patient went into a permanent coma. In 1998, a jury tagged the Clinic with a verdict of over $10 million in negligence and fraud damages for not disclosing these important facts to the patient beforehand.

You have the absolute right as a patient to know if, and under what circumstances, somebody other than your surgeon will be responsible for any part of your operation. This is called the law of “informed consent,” which means that each person has the right to be informed about the medical details of a procedure before giving consent to undergoing that procedure. It’s one thing to have an intern tag along during a routine hospital exam and listen to your heart or lungs or palpate a lump. And it’s quite another to become an unknowing participant in someone else’s medical learning curve during something important like surgery.

Because you deserve the right to know, don’t be afraid to ASK, and don’t be afraid to REFUSE to participate in a game of medical Russian roulette with a doctor you don’t know and have never met. Besides, your surgeon shouldn’t take offense. If you think about it, it’s the ultimate compliment to a surgeon to say: “I want you and you only to perform my surgery because I’ve come to know and trust you.”

3. “Can We Reschedule this for a Tuesday?”

Avoid major surgery on Fridays if at all possible. Although we have no hard numbers to share, we have seen a significant correlation between Friday surgeries and serious mishaps and patient mistakes that occur over the weekend. Perhaps the physician is called on a Saturday evening and doesn’t want to come in, directing an important medical decision to someone else who may not be as familiar with all the medical details. Perhaps staffing levels may be reduced – the possibilities are endless. And we’re willing to bet that if you asked any physician or nurse friend about this issue, they might agree.

4. Got Allergies? Speak Up.

Don’t assume that the hospital bracelet you’re wearing will be seen by the staff. Yes, your allergies to certain medications should be plastered all over your chart, but despite that AND your bracelet, we have seen instances where patients are still given medications they’re allergic to, sometimes with disastrous results.

So don’t be afraid to say before you take a medication: “I’m sure you’re aware of this, but I am allergic to ________.” If the nurse says, “Yeah I know,” compliment him or her for being on top of things. And if he or she says, “Uh . . . I’ll be right back,” and quickly leaves with the medication in hand, pat yourself on the back for speaking up!

5. When No News is Not Necessarily Good News.

Nothing is sadder than a test result showing a major problem, like cancer for example, that was not communicated to a patient for months or years because of an avoidable breakdown in communication between the lab and the physician.

Certainly, it is the physician’s job to inform you of your test results, and failure to do so, or an unacceptable delay in doing so, is inexcusable negligence. But do not assume that your physician’s silence means the results were negative. The possibilities of miscommunication between a busy laboratory and a physician’s office, or even losing the test results altogether, are real and unfortunately all too common.

So if a reasonable amount of time passes (say a week, for example), and you haven’t heard from your doctor, call or stop by the office and ask for a copy of the test results. Why get a copy? If you have a common name, there might be 3 or 4 of you in your geographic area. How do you know that your doctor got YOUR results and not some other George or Jane Smith’s? Make sure either the lab or your physician has given you the right test results, and not somebody else’s!

6. Get a Second Opinion on that Mole.

Generally, many times the need for surgery is obvious and necessary, and your doctor is the right person for the job. But there are times when you may want to explore getting a second opinion (that is, if your insurance will allow it).

You may find out about alternatives to surgery, or you might come away with a better appreciation of some of the risks.

Specifically, if you’ve had a skin growth or mole removed and sent off to the lab, you may want to consider getting a second opinion about the lab’s findings. The reason? One pathologist (a physician trained to read and interpret tissues and specimens) may interpret the findings differently than the original pathologist. This tip comes directly from a pathologist we consulted about a case involving a failure to diagnose a skin cancer. If it’s good enough for pathologists who interpret these growths daily, it’s certainly worth knowing and sharing.

7. Morphine Will Kill the Pain, But . . .

Morphine can also cause respiratory depression that, if not detected, can suppress the body’s ability to supply oxygen to the brain, and can lead to brain damage (anoxic encephalopathy). Thankfully, most hospitals will hook up the patient to a pulse oximeter, a painless device attached to the patient’s finger that will monitor oxygen levels, and sound an alarm if the oxygen levels dip too low. However, not all hospitals use pulse oximeters routinely – particularly small or rural hospitals. If your loved one is receiving narcotic drugs, make sure he or she is hooked to a pulse oximeter, and don’t be afraid to ask for one if one is not in the room.

8. “It Was Just a Little Ulcer and Now Look at It!”

Frequently, the elderly are subject to longer hospital stays. This means longer periods of immobility, which can lead to pressure sores and, if not timely documented or treated, painful and debilitating decubitus ulcers. Many of these are preventable with diligent monitoring and observation by hospital or nursing home staff.

But due to staffing problems or simple inattention, many times these sores are missed or neglected. Do not hesitate to check for signs of developing sores with your loved ones, and report them to nursing staff immediately. And always get the name of the staff person you spoke to. Your diligence and persistence may prevent a potential problem from getting worse, even though it is the staff’s responsibility to look for and treat these problems.

9. “These Don’t Look Like My Blood Pressure Pills . . .”

If you receive a prescription that looks different in color or shape than what you’ve been taking, do not assume you’ve received some other or generic version of the same drug. You may have received the wrong drug! Not only have we seen patients receive the wrong drug, have even seen situations where the pharmacy put the correct label on the pill bottle but included the wrong medication, which was the ultimate in ineptitude. If you’re unsure about the medications you were given, call your pharmacist or your doctor immediately. If possible, show them the drug you received.

* * * * * *

Why are these medical safety tips important? Here are the cold, hard facts. A 1999 Report from the Institute of Medicine revealed that 98,000 people die in hospitals each year due to medical errors. That’s double the amount of U.S. citizens that are killed on our nation’s highways (42,000). And a 2006 report from the Institute of Medicine of the National Academies concluded that medication errors harm at least 1.5 million people every year (that’s not a typo). And at least 400,000 of preventable medication errors occur in hospitals. The bottom line is that you are much safer driving across the country or flying every day than entering a hospital, which is mind boggling if you stop and think about it.

With those jaw dropping numbers in mind, perhaps one or more of these tips will increase your odds of leaving the hospital in better health than when you entered.

False Confessions: Scary But True

Posted by Sergei Lemberg, Esq. on November 8th, 2008

Alan Hirsch, over at The Truth About False Confessions provides important information and updates about coerced confessions, and the devastating impact that they can have on the accused and on their families. The prospect of being coerced into confessing to a crime you didn’t commit may seem farfetched to some people, but it happens all too often by overzealous law enforcement officers. It’s worth pondering that, when the wrong person is convicted due to a false confession, the real perpetrator still roams the streets. Chilling.

In Divorce, the Devil is in the Details

Posted by Sergei Lemberg, Esq. on November 3rd, 2008

Christopher A. Pearsall, a Rhode Island divorce lawyer, is sitting in the guest blogger’s chair today. He discusses the complicated issues surrounding divorce, and why it’s always a good idea to consult with an attorney. Thanks, Chris!

Divorce isn’t enjoyable whether you’re in Rhode Island, Texas, Wisconsin or anywhere else. Ultimately, however, divorce is substantially a matter of law. The law of the state or jurisdiction in which you are getting divorced determines the manner in which assets and debts are divided. Generally, your jurisdiction’s laws will also set forth how children will be provided for through child support, medical coverage, etc.

Though my experience with law has been limited to Rhode Island, Massachusetts, Vermont and New Hampshire, one consistent factor has presented itself in each jurisdiction. Clients and people representing themselves (“Pro Se”) often underestimate the value of a good divorce lawyer.

A good divorce lawyer goes well beyond simply knowing the laws of the jurisdiction regarding divorce and domestic relations. Good divorce lawyers have honed their skills by looking at the details. It is often said that the “devil is in the details” and nothing could be truer in the case of a good divorce lawyer.

Divorce can be a complex area of law in any jurisdiction but a lawyer’s role goes way beyond knowing the divorce laws themselves. Experienced divorce lawyers know not just the laws but they are all too familiar with the forms that need to be filed, the timing involved, the philosophies of the judges, the court rules that apply at any given time and laws regarding contractual interpretation and drafting.

Too many people think that divorce lawyers just follow a step-by-step procedure, submit the right form at the right time, and then say a rehearsed set of questions when it comes time to a hearing. Ahhh…if it were only that simple. As lawyers, we don’t go through years of schooling to do something as easy as that. Like divorce lawyers all around the world. I keep up with the law. I think on my feet. I try to plan for each eventuality that may occur. I follow the court’s rules. Most of aIl, I adapt to each client’s needs and situation as necessary.

Imagine that you are a divorce lawyer representing Daisy in your home state or country. You initially meet with Daisy. Daisy tells you that she thinks her husband Tom, a corporate lawyer, is cheating on her. Daisy wants to file for a fault-based divorce and wants more than half of everything her husband has. Daisy mentions that Tom put their house and their summer home into some kind of irrevocable trust to benefit Tom’s disabled brother and that somehow her husband is part of a business partnership that was incorporated before Daisy and Tom were married. Daisy and Tom have been married for 17 years and have two minor children. Tom has his own business flipping houses for a profit, but Tom is the only one who has participated in that business and Tom has pending contracts for about 9 house sales. Daisy tells you that she doesn’t know much about Tom’s “house flipping” business because Tom does whatever he wants with the money and Daisy never sees any of it.

What are the options in this scenario?

First, can you file for a fault-based divorce in your jurisdiction based upon what Daisy has told you? Can you file a divorce in your jurisdiction based upon multiple grounds? Do your jurisdiction’s rules require you to give notice to the defendant husband and/or his lover before you can file using such grounds?

In your jurisdiction, do you know if a fault-based divorce can be used to acquire a greater portion of the assets? What needs to be proven to establish the fault?

Do you know if an irrevocable trust that holds a marital home in your jurisdiction can shield the property from the opposing spouse? What if Daisy knew about the establishment of the irrevocable trust and did nothing to stop her husband from making the transfer. Could she be estopped from asking for part of the marital home? Wouldn’t you need to know the law regarding not only divorce but also estates and trusts?

Daisy mentioned Tom as being in a partnership that was incorporated before they were married. Don’t you now need to know if Tom is a partner in a partnership or whether he is a shareholder or a director or officer of a corporation? Doesn’t it sound as though Daisy has her terms confused? Do you know if it is an asset that you can reach for Daisy in the divorce or whether it’s outside the bounds of the divorce laws? Do you need to have more facts? Do you need to do more research?

If Tom’s business of “flipping houses” began before Daisy and Tom got married and it was “self-funding” thereafter, what can you advise Daisy as to what she may be entitled? If you and Daisy suspect that Tom is going to hide the money from the nine house flips and keep them from Daisy, do you know if you have enough information to get a restraining order preventing the sale of the houses? Is it advisable for you to stop the sales of the properties? Can you get an equitable order from the court requiring the performance of the contracts but ordering that the proceeds be held by the court pending the divorce proceedings?

If Tom’s business of “house flipping” voids the sales if any third party makes a claim to the proceeds, what can you advise your client to do in the divorce to avoid the loss of any share of the contractual proceeds?

These are just the immediate issues that present themselves on the surface without addressing anything relating to the children, retirement accounts, investments, etc.

There are many more issues presented here but this divorce posting would go on for hundreds of pages if every issue were considered.

Good divorce lawyers know that the devil is in the details: trust details, transaction details, contract details, legal details, court rule details, and much more. Disregard or ignore the details and you settle either for a divorce flying by the seat of your pants either because you represent yourself or because you have hired a divorce lawyer settling for mediocrity in his or her practice.

Copyright 2008. Christopher A. Pearsall.

You can visit Chris’ sites at www.pearsall.net, www.attorneypearsall.com, and www.rhodeislanddivorcetips.com.