Facebook and Social Networking Sites: A Goldmine for Impeachment Material

Anyone who has a Facebook page has probably done it – posted the infamous “late night,” or “angry” post. Pictures of you skydiving, or you with your new boy-toy that is keeping you company while your divorce is pending are possibly part of your Facebook Photo Albums. These things may come back to haunt you down the road in the event you find yourself in litigation. Those skydiving shots may be used to impeach your testimony in an automobile accident claim, wherein you are alleging loss of the enjoyment of life or a permanent injury. You may find yourself going through a divorce where the allegations take a nasty turn.

A New York appellate court recently decided in Romano v Steelcase, Inc. 907 N.Y.S.2d 650, (S.Ct 2010), that private information sought from plaintiff’s social networking website accounts was material and necessary for defendant’s defense. In the case, the plaintiff alleged that as a result of the negligence of defendant, she suffered damages, including loss of the enjoyment of life. Defendant requested current and historical records from her Facebook and MySpace pages to show that she lived an active lifestyle. Over defendant’s objection, the Court ruled that this data was discoverable. The Court further ruled that Plaintiff did not have a reasonable expectation of privacy in information published on social networking websites; and defendant’s need for access to plaintiff’s private information on social networking websites outweighed any privacy concerns voiced by plaintiff.

Author: Melissa Archer

Is a Wrongful Death claim subject to arbitration?

In a case of first impression, the Florida Fifth District Court of Appeal issued an October 1 opinion holding that an estate’s wrongful death claim against a nursing facility was subject to the arbitration agreement entered into by the resident when he was admitted into the facility. (Laizure v. Avante at Leesburg, Inc.). The estate objected to submitting its wrongful death claim to arbitration because a wrongful death claim belongs only to the estate and the resident’s survivors. Because the claim is independent and the resident would have had no right to bring it, the estate argued that the resident did not have the authority to bind it and his heirs when he signed the arbitration agreement.

The appellate court, however, affirmed the trial court order that compelled arbitration. Relying on principles already found in Florida case law and the language of the arbitration agreement, the court reasoned that the estate’s wrongful death claim, based on allegations of negligent care, fell “squarely within the language of the arbitration agreement.” The court certified a question of great public importance to the Florida Supreme Court, an important step in permitting supreme court review of its decision.

Whether a wrongful death claim is subject to arbitration is a question that is being answered differently in various state courts. In Texas, Mississippi, Alabama and Michigan, courts have come to the same conclusion as the Florida court and ordered arbitration for wrongful death claims. In Washington and Missouri, however, courts have found that because a wrongful death claim is independent from any claim a resident could have brought, it is not subject to an arbitration agreement signed by the resident. California cases have gone both ways. There seem to be no published case law directly on the issue from Pennsylvania or New Jersey.

Because nearly every claim for negligent medical and nursing care that resulted in a death is accompanied by a claim for wrongful death, this is not an issue that will go away any time soon. Although, for now, the law is settled in Florida, the fifth district opinion will not bind any of Florida’s other courts of appeal—and with the certified question, the opinion can be reviewed by the Florida Supreme Court. It will be important to watch what courts in every jurisdiction do with the question of the arbitrability of a wrongful death claim as such a claim in a death case may be the key to open courthouse doors to plaintiffs who would otherwise be subject to valid agreements to arbitrate.

Author Amy Miles

Uniformity

When you think of the classic nurses’ uniform, you think of a white fitted dress, apron and cap for women and white pants and long sleeve shirts for men. Over the years, the traditional uniform has morphed into more casual attire. In more recent times, nurses have worn scrubs in varying colors with anything from Sponge Bob Square Pants to their local sports team. Presumably, the trend towards scrubs was to provide comfort for the nurses who are on their feet for 12 hour shifts. Additionally, the gaily decorated scrubs offer some levity in what otherwise is generally a stressful situation for a patient.

However, there is now a growing trend to establish some type of standardized uniforms for employees, particularly the nursing staff. The casual dress trend began reversing itself in 2005 when the Cleveland Clinic revised its dress code, requiring all nurses involved in direct patient care, with the exception of pediatric nurses, to wear white uniforms and white lab shoes, according to the American Journal of Nursing. The center also adopted other color coded uniforms to identify other medical staff. There has now been some movement to make color coding an industry-wide standard.

Research suggests that attire that clearly distinguishes registered nurses from other caregivers and hospital support staff improves patient satisfaction and communication with nurses. A patient is able to readily distinguish their nurse from many of the other staff a patient encounters on a daily basis. Years ago, it was the cap that identified the nurse. In the future, it will be Caribbean blue scrubs.

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