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Monday, November 17, 2014

Most Nursing Home Care Levels Lower Than Reported


The Center for Public Integrity has recently conducted a thorough analysis of the financial records of thousands of nursing homes across the Unites States – and the results are quite alarming. According to the CPI, staffing levels reported to government websites are not in line with actual payroll reports.
Over 80 percent of nursing homes involved in this analysis misreported levels of registered nurses on staff to pubic websites. While how much additional staff is falsely reported varies from home to home, at least 25 percent of these homes doubled their skilled-staffing numbers on public websites. Tragically, many families rely on these websites when choosing a home for their loved ones.
Nursing home abuse and neglect is a growing problem in our society and one often best combatted by selecting a home with a high skilled-staff-to-patient ratio. Finding this information is becoming much harder as necessary safeguards preventing false reports are not currently in place on many nursing home ranking websites. If you find a loved one has been mistreated in their care facility, you need an experienced attorney on your side immediately to help guard against further mistreatment and to see that justice is served.
To schedule your free consultation with one of our experienced nursing home abuse attorneys, please contact The Cochran Firm today.

posted by Admin at 6:07 AM

Friday, November 14, 2014

FEEDING FRENZY

FEEDING FRENZY

By Amanda Brigman, Intern
The Cochran Firm

Fort Lauderdale's Stranahan Park has recently become a hotbed for police activity. However, it is not the criminal activity that usually comes to mind when you hear someone has been arrested. A new city ordinance was passed, and at least six people have been cited or arrested. Who was included in this motley crew? A 90-year-old man, two pastors, and a minor, among others. What was their crime? Feeding the homeless.

Early in the morning on October 22, 2014, the Fort Lauderdale Commission voted on an ordinance that would tighten the laws on humanitarian aid to the homeless population – a growing problem in Ft. Lauderdale. The new law requires a state certified food manager be in attendance when feeding the public outside and making port-a-potties available.  Violation of the ordinance carries with it a fine of up to $500 and 60 days in jail. The law went into effect on October 31, 2014.

The first citation was on November 2, 2014. The first and most notable of those charged was Mr. Arnold Abbott, a 90-year-old has been helping feed the Ft. Lauderdale homeless for over 20 years.  Abbott, as an advocate for the homeless, has already seen the inside of a courtroom. He successfully won a lawsuit against the city of Ft. Lauderdale that sought to keep feeding off of the beaches in 1999. Abbott says he will continue to fight this ordinance as long as he needs to, even if it means going to court again. Abbott was also arrested a second time on November, 4, 2014, as he feeds the homeless in the park on Sundays and Wednesdays.

This ordinance is one of a few ordinances the city has passed that affect its homeless population. Ft. Lauderdale also passed ordinances outlawing storage of personal belongings in public places and toughened their stance on going to the bathroom in public, though the city has plenty of public bathrooms available to the homeless for use.  The mayor of Ft. Lauderdale, Jack Seiler, defended the commission's vote in favor of the new law. Offering that though the new law has caught the attention of the media around the nation, it has the support of the people in Ft. Lauderdale. According to the mayor, this new ordinance provides for a safer and healthier environment for the feeding programs to take place. The city is hoping the homeless will seek out community programs and houses of worship in the area that are offering to feed the homeless indoors. Activists in favor of the new law are hoping this will decrease the homeless in the area, and they argue the old way of doing things just gave the homeless a meal and perpetuated the cycle of homelessness in the area without providing a solution.

Homeless advocates around the city, like Arnold Abbott, argue the city is just trying to drive the homeless out, or hide them out of sight rather than addressing the problem. Abbott's organization, Love Thy Neighbor, Inc. has a priority of feeding the homeless, as well as helping them re-enter society.  Rosemary Servoky was homeless and met Abbott through his feeding program six years ago when she was addicted to crack cocaine.  Now she has completed culinary school and continues to help Arnold Abbott serve the homeless in hopes that she can help someone else.

On November 12, 2014, ten days after the first citation was made, a standoff was underway between the police and Arnold Abbott as he once again prepared to feed the homeless in Stranahan Park. Abbott politely offered the officers some food, which they declined, and Abbott proceeded to open up his food line. Though two churches had offered up their space to Abbott for feeding, he declined. The police were left with no other option but to write him another citation. And then, they left him to continue feeding the homeless of Ft. Lauderdale. Abbott wants everyone to know that he will do whatever he needs to do to continue to feed the homeless, and he will be back next week. Unfortunately, he feels this will end up in court, just as it did before. 

posted by The Cochran Firm at 8:48 AM

Thursday, November 13, 2014

GM’s Response to Dangerous Vehicle Defects

GM’s Response to Dangerous Vehicle Defects
By Caleb Thurston, Intern
The Cochran Firm

It’s hard to believe that the weight of car keys could increase the risk of losing control of your vehicle, cause you to crash, and result in serious injury or even death. However, many owners of GM vehicles currently face this problem. When key chains are too heavy and the vehicle jars or goes off road, the force of this jolt can cause the vehicle’s ignition to slip out of the “run” position. Subsequently, the engine, power steering, power braking, and airbags will fail immediately, creating an extremely dangerous situation for the driver.

When defects are discovered who is responsible to remedy the issue, and how does this process work?

Vehicle defects are typically discovered in two ways. Vehicle manufacturers discover the defect, or the Secretary of Transportation discovers the defect and notifies the manufacturer of the issue. When a vehicle manufacturer discovers a defect they must decide in good faith whether the defect is significantly related to motor vehicle safety. If so, the manufacturer must notify the Secretary of Transportation, automotive dealers, and all most recent owners of that type of vehicle “known to the manufacturer.” “Known to the manufacturer,” means each registered owner of the defected vehicle whose name and address are reasonably ascertainable by the manufacturer.

According to the National Traffic and Motor Vehicle Safety Act (NHTSA), manufacturers’ notice must include:
·       A clear description of the defect
·       An evaluation of the risk to motor vehicle safety reasonably related to the defect
·       The measures to be taken to remedy the defect
·       A statement that the manufacturer will remedy the defect without charge
·       Time period allowed for repairing the defect within

If notice fails to meet each of these requirements, the Secretary of Transportation may order the manufacturer to comply with notice requirements or may take other action as needed. A hearing can be conducted, and depending on the severity of the possible risks associated with the defect, the Secretary may order manufacturers to take additional steps to find and notify customers.

Manufacturers may not escape liability in these types of cases by simply notifying dealers who sell their products. Dealers could fail to provide proper notification to customers or properly repair defected vehicles. Even if dealers are notified, the injuries of the customers were significantly related to the manufacturer’s defect, and that defect is held to be the legal cause of those injuries.

In order for the acts of a third party (party other than the manufacturer) to become the only legal cause of the customer’s injuries:
·       The act of a third party must not be foreseeable, or reasonably anticipated, by the manufacturer,
·       The act of a third party must not be triggered or caused by the manufacturer,
·       And the act of a third party must be sufficient, or enough by itself, to cause the customer’s injuries.

A manufacturer may escape liability if customers fail to comply with a reasonable recall program within the given time period. Failure to comply with the requirements of a recall program is sufficient to break the chain of causation between the wrongful acts of the manufacturer and the injuries of the plaintiff. Failure to participate in the recall program during the assigned timeframe then becomes the cause of the injuries sustained.

Why Won’t Customers Partake in Recall Programs?

Federal law requires manufacturers to remedy defects that affect motor vehicle safety for free. The average recall-repair rate is 75% in the U.S. per year, but recently fewer people are taking their cars in for recall repair. To offset this issue, GM is now offering $25 online gift cards to different stores for customers who comply with recall programs. The NHTSA supports this program, declaring that “it shows a heightened level of commitment by GM to make sure recall repairs are made.” However, this collaborative incentive promotion between GM and NHTSA is only offered to those who have done absolutely nothing to set up recall repairs.

Will incentive programs eventually produce a negative impact? Since only those who waited until the last minute received gift cards, will customers of defected products wait until the last minute to pursue recall repairs in hopes of receiving award incentives?

Issuing gift cards for people who proactively deal with recalls could provide better incentives for customers to respond promptly to a recall repair. However, other manufacturers such as Toyota have seen enormous improvements in recall responses by providing access to 24-hour repair services.

posted by The Cochran Firm at 2:10 PM

Tuesday, November 11, 2014

Fireball Whiskey: To Drink or Not to Drink?

Fireball Whiskey: To Drink or Not to Drink?
By: Anna Blood, Intern
The Cochran Firm

Fireball Whiskey, the popular cinnamon flavored liquor is facing recent criticism due to fears over the use of propylene glycol, a chemical used in anti-freeze. Fireball has recently been recalled in Sweden, Finland and Norway after a batch of the North American recipe, which contains higher levels of propylene glycol than the European batch, was shipped there.

Fireball’s North American formula was found not to be in compliance with European regulations,
which calls for less than 1 gram per kilogram of propylene glycol while the North American formula allows up to 50 grams per kilogram of the substance. Sazerac, the New Orleans based beverage company that owns Fireball, stated that its North American formula was shipped to Europe, and one ingredient was not in compliance with European regulations.

Propylene glycol is a flavorless, odorless, synthetic substance that absorbs water and helps products maintain moisture. The substance is used as a less toxic and environmentally safer alternative to ethylene glycol, which is toxic to humans. Today, propylene glycol is widely used in food, tobacco products, pharmaceuticals, and cosmetics in the U.S. The substance acts as a thickener, stabilizer, and flavoring agent and is also used to create artificial smoke and e-cigarettes.
The FDA stated that propylene glycol is “generally recognized as safe” and has been approved for use in food and other various products.  The substance is typically found in products that are heavily processed such as sodas, store bought cake mixes, and ice cream. However, the CDC has determined that toxic levels of the substance are almost impossible to achieve through oral consumption of consumer products.
Despite this, the Department of Health and Human Service’s Agency for Toxic Substances and Disease Registry does consider propylene glycol a toxic substance. When consumed in large quantities, it can lead to some minor health problems and can increase the amount of acid in the body. According to the CDC, propylene glycol toxicity has only been reported rarely and in unusual circumstances. For example, toxicity may result from excessively large injections of propylene glycol-containing medications and when topically applied, increased sensitivity may be seen in people with pre-existing skin and eye conditions.

Sazerac defended its product by stating that, “absolutely safe to drink and the use of propylene glycol in Fireball creates no health risk whatsoever.” The substance is used as a flavoring ingredient in the whiskey and is used in very small quantities, less than one eight of the amount allowed in the U.S. Additionally, Sazerac anticipates having Fireball back on the shelves in Sweden, Norway and Finland within 3 weeks while the U.S. has no plans to ban the whiskey.

Despite the alarming concerns over its use in Fireball, propylene glycol has been used in over 4,000 food, beverage, pharmaceutical and cosmetic products in the U.S. for more than 50 years. Most people consume propylene glycol everyday in soft drinks, sweeteners and other products. It is safe to say that even if one avoids consumption of Fireball, they cannot avoid consumption of propylene glycol all together. For consumers to truly be protected from any health risks associated with the consumption propylene glycol, it is up to the FDA, not the manufacturers of Fireball, to prevent this. 

posted by The Cochran Firm at 9:11 AM

Monday, November 10, 2014

Unlawful Retaliation Claims on the Rise


According to the Equal Employment Opportunity Commission, 2013 marked the 8th straight year of increases in unlawful retaliation claims filed by employees. There were over 38,500 claims made last year involving employment issues such as demotions and firings, many of which centered on race, gender, and other types of discrimination. The EEOC believes the increase in claims is due to more employees being aware of their rights.
Employment law is incredibly complex and, in many cases, laws are stacked to favor employers. Even when workers have a strong union, employers often try to maneuver around legal issues and engage in activities that are just plain wrong. When you are the victim of any type of mistreatment at your job, you are entitled to seek justice through legal action.
The employment law attorneys at The Cochran Firm offer swift and effective representation for workers who have been wronged by their employers. We would be honored to meet with you free of charge to discuss your case, your rights, and the most effective way to get the justice you are due.
To schedule your free consultation with one of our employment law attorneys, please contact The Cochran Firm today. We have offices in several U.S. cities from which our attorneys represent workers throughout the nation.

posted by Admin at 8:36 AM

Thursday, November 6, 2014

Mandatory Ebola Quarantines Expose Legislative Issues

Mandatory Ebola Quarantines Expose Legislative Issues

By Caleb Thurston, Intern
The Cochran Firm

Since the outbreak of Ebola, U.S. medical and military professionals are traveling to Ebola infected communities of Western Africa to provide assistance to these areas. This assistance is beneficial in the sense that it seeks to prevent further outbreak of Ebola by attacking the disease’s origin. However, traveling to provide assistance also creates several potential health and safety risk issues for the general public upon returning to the United States.

As the first round of these volunteers are beginning to return to the U.S., federal and state governments are finding themselves legislatively unequipped to prevent further spread of Ebola. Outbreaks of other communicable diseases in the past have led government officials to look at the Pentagon’s Department of Defense policy on this issue. This policy states that upon returning from areas infected by communicable diseases, as long as individuals are asymptomatic, they may not be detained.

Even though this federal policy guides the analysis of this issue, the dilemma is that this policy is based on a presumption. The presumption is that a person cannot transport communicable diseases unless the person is showing symptoms. However, this presumption is flawed because people infected with Ebola may not show signs of the illness for up to twenty days after exposure. Under this federal policy, people carrying Ebola returning to the U.S. could not be detained or quarantined since they would likely not show symptoms initially. Then, once these people arrive back in their home communities, these symptoms could activate, making them contagious, potentially infecting those around them and the general public.

While individual states typically use the Department of Defense’s policy as a guideline for how to handle incoming travelers from infected locations, each state has the majority of authority to pass more restrictive laws regarding health and welfare. The concept of “federalism” provides that any authority not expressly given to the federal government in the constitution is passed down to the states. The states may independently govern these issues as so long as their regulations do not violate any individual’s fundamental constitutional rights by confining them without due process of law. Issues arise as some states take more restrictive measures such as mandatory quarantines of asymptomatic individuals without their consent or a valid court order.

Pentagon officials refuse to use the word quarantine and refer to these procedures as controlled monitoring. Mandatory controlled monitoring may take different forms. The U.S. Army is mandating detainment of asymptomatic soldiers for twenty-one days at a secured facility in Italy before returning to the United States. Department of Health officials in New York City are mandating in-house detainment for twenty-one days, under both passive and active monitoring. “Passive” is where individuals take their own temperature twice daily. “Active” is where state public health authorities visit the person’s house to take their temperature two to four times daily. In New York, detained individuals are given a due process hearing in regards to the constitutionality of their detainment. New York City is exempt from the statewide public health law, which mandates a magistrate’s order for detention. Here, the Commissioner of Health Department may authorize detentions.

In New Jersey, a medical volunteer was detained involuntarily in a hospital tent for twenty-one days, without a court order or a due process hearing. This person obtained legal counsel and is bringing a lawsuit challenging the constitutionality of her detainment. This first instance where a detainee has brought legal action against a state for mandatory Ebola quarantines may not be the last. Detained individuals would be required to put their entire life on hold for three weeks, could not travel freely, could not go to work, could risk losing their job, and could suffer severe strains on their finances and intimate relationships. Detainment could ultimately create a negative influence on future volunteerism.

Legislation must adapt to the discovery of new medical diseases that were not contemplated at the time of enactment. Whitehouse officials are still developing a tier-based approach. Under this plan, level of detainment would be related to possible contagiousness levels. However, it is still under development and more travelers are returning form Ebola infected areas each day.

One solution would be to alter current regulations to allow for mandatory detainment of asymptomatic individuals traveling from locations infected by communicable diseases. This detainment must be limited to a time limit that symptoms typically occur within, as long as that time is reasonable. This solution balances the rights of the individual against unreasonable detainment with the legitimate state interest of protecting citizens from communicable diseases. As this issue progresses, it will be interesting to see how it is resolved and which branch of government resolves this matter.

posted by The Cochran Firm at 3:11 PM

Wednesday, November 5, 2014

Suspected Terrorists’ Rights Versus Public Safety

Suspected Terrorists’ Rights Versus Public Safety

By Caleb Thurston, Intern
The Cochran Firm

There is widespread confusion about which civil and privacy rights extend to individuals suspected of terrorist activity. According to the matter of Boyd v. United States, the United States Supreme Court held that although the right to privacy is not expressly stated, it is implied from the first, fourth, fifth, and ninth amendments.

United States v. Katz is the modern case that is applied by courts facing fourth amendment privacy rights issues. Here, the defendant utilized a public phone booth to communicate gambling information from Los Angeles to Boston. FBI agents planted a listening device on top of the telephone booth and recorded the petitioner’s phone conversations after extensive surveillance. The Court held that “the fourth amendment protects people not places,” and the defendant’s motion to suppress that evidence was granted. According to the analytical test employed in Katz, an act of government agents is a violation of an individual’s right to privacy when, (1) the individual exercised a subjective expectation of privacy, and (2) that expectation of privacy must be one that society is prepared to accept as objectively reasonable.

Following September 11th attacks on the U.S., American citizens willingly gave up some privacy rights acknowledged by Katz to allow the government to effectively prevent future terrorist attacks.  As a result, only six weeks after the attacks, Congress introduced the USA PATRIOT Act of 2001. This introduced changes to over fifteen U.S. statutes which George W. Bush signed into law forty-five days after the attacks.

The Patriot Act allowed the federal government to strengthen national security by expanding its surveillance and investigative authority. The act contained many provisions that were originally rejected by Congress but then immediately passed without debate following the events on September 11th. Some of these provisions violated privacy rights of American citizens in exchange for enhancing national security.

Under the Patriot Act, the government had a lower burden of proof for warrants and was only required to have reasonable suspicion rather than probable cause. This increases the likelihood that warrants will be used improperly where an officer has no real suspicion of criminal activity. These types of issues require balancing the privacy and civil rights of suspected terrorists with the public right to safety. If the two are relatively equivalent the balance is tilted toward public safety.

On December 16, 2005, fifteen days before the expiration of the Patriot Act, White House Press Secretary released a statement demanding a minority of Senators to stop delaying the reauthorization of key provisions. It re-emphasized the importance and effectiveness of the act and stated that the Senate is responsible for making sure the nation is not without this “critical law for even a single moment.” The Executive branch feared the filibuster would allow the act to expire, leaving the nation temporarily unable to investigate possible terrorism threats.

The Act was finally reauthorized just before its expiration but not without certain modifications. Since the reauthorization of the new Patriot Act, significant issues surfaced about the lack of oversight of NSA abilities to investigate so called national security threats. The Foreign Intelligence Surveillance Court gave the NSA secret approvals authorizing “sweeping data collection,” of records on all U.S. phones.  This violated Section 215 of the Patriot Act which only allows the collection of data that could be “relevant” to terrorism.

The proposed USA Freedom Act would “end the bulk collection of phone records, limit the NSA’s power and tighten oversight.” Republican Congressman Rogers and Democratic Senator Feinstein are fighting against the USA Freedom Act to protect NSA’s surveillance and investigative authority. They introduced another bill which would promote transparency while still supporting sweeping data collection. If the USA Freedom Act is not passed, intelligence could completely lose their power when the Patriot Act expires again in 2015.

Even with the most diligent legislative action and the most objective executive action, there must be review under the doctrine of the separation of powers. The oversight of each branch’s actions is by process of Judicial Review. Without this judicial power, the other two branches of government could become too powerful. It is essential that the courts conduct a ser review seriously and diligently. During this process an independent federal magistrate will conduct an ex parte review to determine whether there is sufficient information to rise to reasonable suspicion and probable cause. Additionally, to increase transparency, an annual report redacting the specifics should be provided to the senate judiciary committee listing type and quantity of warrants issued or denied throughout the year. This process ensures the integrity of each branch of government as well as the due process rights of the suspect and the public’s safety.   

posted by The Cochran Firm at 2:26 PM

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