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The attorney-client privilege protects private communications between a client and a lawyer. This sensible rule promotes a full and frank discussion so that the client can get the best advice without the interference of prying eyes and ears. It assumes the communications are strictly private – not in the presence of anyone other than the client and lawyer. It also assumes no disclosures to third parties that would waive the privilege – by the client or the lawyer. Here’s an example to illustrate the point: Let’s say that early in my career handling plaintiffs’ medical malpractice claims, a client drove his car through a hospital’s glass front. The fact of the accident is not attorney-client privileged. I could write about the fact that my client was found in his car, half in and half out of the hospital window, without violating my ethical duty to the client. However, my private discussions with my client (before and after) would be privileged, and I couldn’t share them on my blog.

Work-product privilege protects our thoughts, impressions, and strategies in the case—as long as they are not shared in public or with any unauthorized third party (authorized third parties, for instance, would be the many vendors used to help work the case, and the privilege binds them). Staying with our example, my thoughts and opinions about my client ending up in his car half in and half out of the hospital plate glass window would be privileged unless and until I made those thoughts or opinions public as part of my client’s case. Included is any discussion of how or why my client told me he was found in his car, half in and half out of the hospital.

Generally speaking (and hypotheticals aside), my job is to pursue civil remedies to obtain justice for my clients. The most effective way to do this is to take steps toward a jury trial. The right to a jury trial is the foundation of every settlement and verdict obtained. The Seventh Amendment to our Constitution is dishonored whenever the right to a jury trial is impaired or legislated out of existence.

The Seventh Amendment right to jury trial comes from the Magna Carta – the King’s deal to avoid violence with his subjects by guaranteeing certain rights, including the right to jury trial. Causing violence to property and persons is always counterproductive to pursuing a jury trial. But that assumes the existence of a meaningful right to a jury trial, as guaranteed by our natural rights under the Constitution.

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Early America adopted English common law and a long history of cherished rights, including the right to trial by jury – which dates back to 1215. In that year, Pope Innocent III issued an order validating a person’s right to a trial by peers. That same year, at Runnymede in England, King John was forced on a battlefield to sign Magna Carta – the ancient pact he made with English Barons, including a stipulation to man’s right to “the lawful judgment of his peers”. These are the events that first set rule of law above kings.

A kid gunned down a health insurance CEO as he walked a busy Manhattan sidewalk into a shareholder’s conference. In America, there’s a certain passion surrounding guns and the Second Amendment. The Surgeon General issued an advisory about an epidemic of gun violence and deaths resulting therefrom. U.S. Surgeon General Issues Advisory on the Public Health Crisis of Firearm Violence in the United States

Firearms are the leading cause of death for American children and adolescents. HHS Report on Firearm Violence in America

At the same time, Americans have lost respect for our justice system in record numbers according to Gallup. Trust in court system at record low: Gallup

There are many reasons for both of these trends. They aren’t all related. But here is what I propose. We need a movement similar to the #2A movement to promote jury trials, a right guaranteed by the Seventh Amendment to our Constitution. And we need to invest time and money into improving our court systems and their rules so they can demonstrate their importance to our system of governance.

Self-defense and a well-regulated militia should be a last resort. There wouldn’t be a need for violence if we took our jury trial rights as seriously as our gun rights. Project 7A is designed to start that process.

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Given recent events, I am going to work on that.

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I used to sit for hours with my Uncle Reed talking about history, particularly the American Civil War. We shared a passion for that part of our lore. We’d review the characters, the political developments of that day and of course the battles. As lawyers, we tended to gravitate always back to Lincoln (the Sun in that universe of our time): always back to the complex mass of energy that was Lincoln’s mind; the momentous decisions he faced; and, the human grace and intellect with which he made those decisions.

Before the war, Lincoln was involved in the Effie Afton case in Chicago concerning a steamship accident on a railroad bridge spanning the Mississippi. The case pitted River interests against the Railroad and became a celebrated cause for the westward movement of the Country. As part of the Railroad defense team, Lincoln visited the bridge site, sat on the bridge watching the currents and spoke to the engineer and his family in detail about the circumstances of navigation around the bridge. His detailed understanding of the facts resulted in his selection as the lawyer to make the closing argument, which he did with precision and persuasion, using a model of the ship, details about mechanical failures of the steamship’s rudder, the history of other ship’s safe navigation of the bridge and specifics of the currents that pushed the malfunctioned ship into the bridge – none the fault of the Railroad as he argued successfully.

I was still in high school when my Father taught me how to read a medical record so that I could help him review cases. That fundamental lesson – repeated countless times over the course of my career – continues to benefit my clients. There is no substitute for diligence in preparation and understanding the particular facts of a case and almost every personal injury case requires a comprehensive knowledge of medicine and medical records in order to achieve success.

Dozens – if not hundreds – of decisions concerning your case can make the difference. Make sure your lawyer has the backround, experience and comprehensive knowledge necessary to achieve success for YOU.

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“I am not an accomplished lawyer” Abraham Lincoln.

Abraham Lincoln was a famously small town lawyer. For the bulk of his career, he practiced solo with the help of a junior lawyer named Herndon – who functioned more as a paralegal – doing office organizing and paperwork.

Lincoln was a circuit rider, traveling around the State of Illinois to all of its courtrooms, where he was known to “split hairs as well as rails”.

There is a story about a land owner who visited Lincoln in his office about a boundary dispute with a neighbor. As they were meeting, that same neighbor came into the office to hire Lincoln. In the presence of both men, Lincoln is said to have given a short review about how the case was likely to proceed and then announced it was his lunchtime and that he would be back in an hour. He locked the door behind him. On his return, the two neighbors had settled the dispute.

In modern life, there isn’t a lot of incentive paid for humility. Or, subtlety for that matter. Still, the qualities exemplified by Lincoln’s trial practice – hard work, detailed knowledge, unfailing expertise, honesty and fair dealing – are enduring American values.

One quote that Lincoln is often remembered for celebrates this love of reason and the rule of law.

“I shall do nothing in malice. What I deal with is too vast for malicious dealings.”

One of the lessons I learned from my Father is that strength in a case is often quiet. A trial lawyer carries into a room – or not – his reputation for seriousness, diligence and comprehensive understanding of the law and how to achieve success for the client within it. When your lawyer brings that kind of reputation to your case, the successful resolution of your matter becomes much simpler. This is the legacy my family left me and what I bring to YOUR case.

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Bill Thompson, Jr.

April 26, 2016

On November 13, 2015, the FBI notified 21^st Oncology that over two million patients’ confidential records and data in 21^st Century’s possession and control had been collected and sold by criminals using the Internet. 21^st Century’s patients were not notified for three months or more. This was not their first data breach: in 2013, a 21^st Century employee caused a similar data breach of their patient records. 21^st Century also recently settled a False Claims Act filed by the Federal Government for almost twenty million dollars ($20,000,000.00).

On December 19, 2015, a truck carrying whole, unredacted, confidential patient records from Radiology Regional in Ft. Myers dumped nearly a half million (500,000) patients’ records onto the windy, dry street on Fowler Avenue where they were blown throughout the city. Despite Radiology Regional’s awareness of the data breach, the affected patients were not notified of the breach for several months.

Since the passage of HIPAA (the 1996 Health Insurance Portability and Accountability Act – the most sweeping health change since ERISA) and ACA (the 2010 Affordable Care Act, often referred to as ‘Obamacare’), health care providers were directed specifically by statutory, administrative and professional rules to collect, maintain and protect electronic medical records (EMR). These data and records invariably contain sensitive financial and identity data, as well as confidential medical records. Protection from breach is a mandated priority. The EMR safety system only works when honored by best practices that are laid out by statute – not circumvented or recklessly disregarded.

Breach of contract claims will usually arise out of documents and agreements contained in the patient records of the facility. These signed agreements typically incorporate HIPAA by reference if not by specific citation. They can form the basis for pleading a simple cause of action for breach of a written agreement to comply with applicable law by maintaining the privacy of the Plaintiff’s data.

Florida’s Constitution also guarantees our privacy and provides varying common law remedies for invasion of privacy in State Court. See, Doe v. Beasley Broadcast Group, 105 So. 3d 1 (Fla. 2^nd DCA 2012).

While HIPAA and Florida’s version of that Federal Law (FIPAA) do not provide a civil remedy, they are evidence of best practices and standard of care that provide a foundation for jury instructions on negligence. The laws also incorporate the Federal and State Unfair Trade Practices Acts that provide civil remedies that include cost and fee-shifting provisions.

In addition, Florida recognizes the statutory (including administrative rules) duty of health care providers to properly maintain medical records. See, Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987). While Valcin has been clarified (it should no longer be used to support an independent cause of action for spoliation), the doctrine of spoliation is alive and well in the State. Valcin’s burden of proof shifting presumptions are a powerful tool for claimants where the health care provider negligently loses, destroys, or discards records that prejudice the ability of the Plaintiff to fully prosecute their claim. It can and will likely be argued by data breach victims that releasing the protected records or allowing unpermitted access to the records can also result in a Valcin instruction under proper circumstances.

When the confidential medical and financial data of almost three million local patients is breached – that is a matter of serious concern for the entire community. Many of these patients have been subjected to life altering identity theft and fraud since these data breach incidents. False IRS returns were created for the purpose of stealing refunds. Funnel Accounts were created for the purpose of running stolen and illegal funds and purchases through. False credit and bank accounts were fraudulently created – damaging their credit and injuring innocent lives.

Florida health care reimbursement and delivery systems operate in opaque secrecy. Informed consumers need to see the charges billed and the record of payment. They need to understand the relative position of collateral source payors. They should know how and why hospitals and doctors route billing through the payment channel the way they do. Health care providers should clearly and simply identify how patient insurances are being handled. For instance, what the Hospital is billing, who they are billing it to and whether there are more cost efficient alternatives. In many cases, local Hospitals deliberately avoid charging valid insurance if they think they believe they can recover more elsewhere by ignoring available insurance.

Patients have a right under Amendment 7 in Florida’s Constitution to know their health care provider’s incident history. Like billing practices, patients have a right to be armed with information about the security of their information. Any data breaches deprive patients of their consumer rights in the health marketplace.

Patients must protect and defend their rights when they are violated. After decades of Florida ‘tort reform’, limiting patient rights. The Supreme Court opinion in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), reversing the legislatively imposed caps on medical malpractice damages, may be the beginning of a broader movement to secure those rights.

_____________________________

Bill Thompson, Jr.is Plaintiffs’ counsel of record in the data breach class actions Bellows v. Radiology Regional, Florida Circuit Court Twentieth Judicial Circuit (Fort Myers) 16-CA-000629 and Trelease v. 21^st Century Oncology, United States District Court (Middle District, Fort Myers) 216-CV-258-FTM-99-MRM. He was also the solo trial and appellate counsel in the invasion of privacy claim appealed to Florida’s Second District Court of Appeals prior to settling for a confidential amount, Doe v. Beasley Broadcast Group, 105 So. 3d 1 (Fla. 2^nd DCA 2012).

Footnotes:

1 Office of Inadequate Security, March 4, 2016;

2 Id., September 24, 2013;

3 Id.

4 Ft. Myers News Press, Melanie Payne, March 2 and March 9, 2016.

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