Has my attorney committed malpractice or violated any fiduciary or contractual duties?

My attorney did not tell me about a mediation offer from the other side in my personal injury suit. I only found out about 1-2 weeks later when I asked for all the documents in my case. By the time I found out, my attorney had already sent another communication to the other side (saying nothing about the mediation). I told them to go back and ask about mediation, but the offer was now off of the table. My attorneys knew that I did not want to file a lawsuit and I was seeking something like unbinding arbitration.

Nathan’s Answer

Without litigation, it may be difficult to bring the other party to the table in a mediation. If the case is early on, it may be in the parties's interest to settle early, if they plan to settle at all. A legal matter, whether filed as a lawsuit or not, is always subject to possible expedient settlement at any stage.

Keep in mind that if the other side has offered their interest in mediation, this does not mean they are willing to settle, only that they are possibly willing to try mediation under circumstances favorable to them. Mediation, if both parties agree, can be scheduled at any time convenient to the parties. Mediation may or may not achieve resolution. Sometimes a party says they want to try mediation only to learn what evidence the other side has in preparation for litigation.

How strict is HIPAA on its rules in terms of compliance?

A friend reports to a non-clinician friend that she is aware of a child who is engaging in self harming behavior. The non-clinician friend accesses her agency's data base to determine if the self-harming child is a client and if so who the clinician is.

The non clinician has access to the same data base but for non-clinical reasons as part of her job.

Now it appears by doing so a HIPAA rule has been violated. So what takes precedence: strictly following a HIPAA rule which may not have been known or ensuring the safety of the child? All agree what was done is morally right to ensure no further harm comes to the child. But it appears HIPAA has a different view.

Nathan’s Answer

HIPAA violations are fact intensive. As a result, neither I nor any other attorney can provide an opinion without an intensive fact analysis.

HIPAA (and HITECH) is generally enforced with zero tolerance by the Department of Justice and the Office of Civil Rights and can result in extremely costly penalties. (over 1MM in some cases)

Whether a HIPAA violation occurred currently depends on:

1. Source and type of information (for example, medical record or Protected Health Information (PHI))

2. Whether disclosure was permitted

Covered entities may report protected information to authorized law enforcement under some circumstances.

For example:

[Information can be disclosed] to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public (45 CFR 164.512(j)(1)(i))

In the scenario you describe, it is unclear whether the information was protected, and it is unclear to whom the information was disclosed.

Change Order Amendment for Future Fees & Services

New client signs overall professional services agreement. What is most client-friendly method in original agreement to increase (fully anticipated but not exact details) services & fees? Professions services Change Order Addendum?

Nathan’s Answer

I have changed the correct practice area from ethics to contracts.

It seems you desire to update the contract to more fully express your intentions. You can use an addendum, signed by the party to be charged, or simply redraw the contract up and ask that all parties execute the new, updated agreement.

I highly recommend you contact a contract attorney for specific advice related to your matter, especially if the professional services agreement is going to be expanded in a manner that is not yet clear.

I settled my case directly with the opposing counsel, can I buy a gift for the opposing counsel?

I did not have a lawyer representing my lawsuit, but I settled my case directly with the opposing counsel.

Since I have built a good relationship with the opposing counsel, can I buy him a gift showing my appreciation?

Nathan’s Answer

Since you did not have counsel, you technically were your own counsel. If you were represented by counsel, would you want your counsel sending anything but a courteous thanks by email or mail to opposing counsel? My suggestion would be to keep it professional as you may run into opposing counsel again, and you would not want opposing counsel suggesting you attempted to bribe or influence him or her in any untoward way.

Is it normal for lawyers to ask for a cash payment for their retainer fee?

This is a criminal defense lawyer. He said he would take his retainer fee in form of a personal check but prefers cash. Is that normal?

Nathan’s Answer

It is said "cash is king." Cash immediately verifies you have the funds necessary to retain the services of an attorney who prefers to be paid in such a manner.

Can a person be told to submit proof of marriage before test acess when driver license and passport has maiden and married name

i was licensed by the state of california for several years left state licensed expired had to be relicensed by test my maiden name has been used since 1994 on licensed but driver license and passport has both names i paid my 200 dollars to take the nurse exam again and was denied when i arrived i was told my names did not match in their computer only my first and maiden name was there but on my driver license and passport has my first name and maiden and married name i was told i wasnt that person i drove 78 miles was told to go home i cant take the test i will have to show proof of marriage so i lost my 200 dollars and have to pay again although the test center have a hand printing device that identify you before a person can test i ask the lady to identify me she refused

Nathan’s Answer

Because you were licensed under one name, that name legally changed, even if it contains elements of your old name. You were denied entrance to a state licensing exam for security purposes. I know it seems unfair and may have been a huge hassle, but the exam proctors are under strict instructions to uniformly apply screening for making sure names match exactly. They do not have the resources to confirm your identity without your assistance. If this measure was not in place, someone who is unauthorized would be able to take the exam and potentially pass, causing the public to be treated by an individual who did not demonstrate minimal competence in nursing. This could severely injure or kill a member of the public, so such a regulation must be abided by.

Is there an SOL for this type of case?

A State Health Nurse altered the test results of my PPD/TB test to read zero reaction after 48 hours and I have a scar and a photograph of my forearm showing a huge 10mm+ reaction. Along with a +chest x-ray. Only because it would have led to an uproar about how I (15 yr old virgin) caught TB disease? in the first place, and it would have uncovered an earlier crime that was committed by Child Services and covered up. One lie leads to another lie type situation.

Nathan’s Answer

This matter hinges on tolling the SOL if you were under the age of majority when the injury occurred. Tolling if applicable will affect each of the generic information below:

If you are suing for tort (personal injury) to yourself, California Code of Civil Procedure section 335.1 applies. You have 2 years from the injury. If the injury was not discovered right away, then it is 1 year from the date the injury was discovered.

If you are alleging medical malpractice, you have 1 year from the date plaintiff knows or should have known about the injury, or 3 years from the date of the injury whichever is the earlier date under California Code of Civil Procedure section 340.5.

If you are suing a government agency or office, you must file an administrative claim with the government entity before your matter can ever see the light of day in court.

For a personal injury matter, you must file your administrative claim within 6 months of the date of the injury under Government Code section 911.2.

After you file your claim, the government has 45 days to respond. Government Code section 912.4.

If the government agency denies your claim during the 45 days, you have 6 months to file in court from date the denial was mailed or personally delivered to you. Government Code sections 912.4, 912.6.

If the government does not respond to your claim during the 45 days, you have 2 years from the date the incident occurred to file in court. Government Code section 945.6 (a)(2).

Whether you are suing for personal injury, medical malpractice and especially if you are suing the government, these deadlines are extremely critical.

Your applicable SOL/s on this case are made more complicated by the fact that you are or were a minor at the time the incident occurred. An assessment needs to be performed to calculate the exact SOL/s.

Also, there seems to be a much deeper story that needs to be evaluated as there may have been an alleged pattern of misconduct by government. Please contact a qualified administrative law, personal injury law and/or health care law attorney to consult with you regarding your options.

Who gets served the summons when the respondent is an administrative agency?

If the case involves petition for writ of administrative mandate and the respondent is the Dept. of Real Estate, does the AG get served the summons of the DRE?

Nathan’s Answer

It sounds like you are pursuing a 1094.5.

Procedures change often with the nearly 50 Boards under the Department of Consumer Affairs. There is no such thing as the Dept. of Real Estate as of July 1, 2013. This is an example of how little things change often.

There is however the Bureau of Real Estate under the DCA. As a result, you can serve the AG or you can serve the Bureau itself. AG's I've been speaking to usually have me serve the Board directly, so the Board is notified and prepped.

ALWAYS check with the AG on how they prefer service on behalf of their client. It is simply a matter of being courteous.

ALWAYS seek advice of CALIFORNIA counsel as administrative mandates in California are their own unique beast.

LifeScans how far do they go back and look

How fsr do they go back like tryimg to get a Guard Card

Nathan’s Answer

It would be wise to order your own LiveScan report by going to a local provider of the service and submitting your fingerprints and paying the fee. Check your LiveScan report as you will have all state and federal convictions, if any, listed. Sometimes the government makes mistakes like giving you TWO DUI convictions, instead of 1, which could spell disaster for any guard card, or employment prospect. You'd have to contact the CA or US Department of Justice to obtain correction forms if that is the case. Also, you may want to consider expungement or pardon relief for misdemeanors or felonies.

Is it possible to get LVN license after 3 misdemeanor DUI's in California?

I am a first semester LVN student who has 2 DUI's in 1999 and one in 2012. In October of 2012, I voluntarily entered a residential treatment program for 7 months and graduated. Directly upon graduation I entered into the second half of the program which is transitional housing along with outpatient/aftercare requirements (including self help mtgs. and random testing). On Oct. 11, 2014 I will have 2 yrs. sober. By the end of my stay here I will have spent 2 yrs. and 10 months in supervised recovery. By the time school is over I will have close to four years sobriety. I know how strict the BVNPT board is about proof of rehabilitation. All DUI fines and classes have been completed and paid. I will work on expungement prior to finishing school. Is there any hope for me?

Nathan’s Answer

Your tenacity at self-improvement is to be commended. As mentioned by experienced attorneys, there is a roadmap, but it will be a tough road ahead. You must continue to take the affirmative steps necessary to produce a strong record that will favor you should there be an initial denial resulting in a possible administrative hearing.