Risk management professionals should not take lightly the complexity associated with providing healthcare services. While regulations, third-party payer requirements, and licensing/accreditation standards contribute to this complexity, formalized policies and procedures can mitigate it by promoting workplace safety, regulatory compliance, and the delivery of safe, high-quality patient care.
Moreover, well-written, up-to-date policies and procedures reduce practice variability that my result in substandard care and patient harm. The operational challenges associated with drafting (and maintaining) comprehensive written policies place heavy demands on healthcare managers.
Given increasing financial pressures and the top-priority status that must be given to direct patient care, managers may find it difficult to find time to review or update policies and procedures. Deferring policy and procedure development, however, may result in negative consequences.
Policies and procedures may become outdated, and those who adhere to outdated policies may carry out actions that are no longer consistent with industry-recognized practices. Alternatively, they may simply elect to disregard the policy. Either choice may result in patient harm and a malpractice claim. Evidence that caregivers followed outdated policies may hinder defense of an otherwise defensible claim.
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What You Should Know About Your Legal Health
INTRODUCTION
As with your physical health, you can avoid problems by periodically checking your legal health. Areas to consider include contracts, consumer rights, estate planning, insurance coverage, retirement planning and wills. You should review your legal papers about once a year to see if the relevant plans and documents reflect your current needs.
Such an annual legal checkup may uncover problems that can be corrected before they cause trouble. For example, if you see that your property insurance is inadequate because of increased home values, you might decide to increase your homeowner's insurance to protect yourself from possible losses. Or, at the birth or death of a loved one, you may want to reevaluate your will or life insurance policy.
You can conduct a self-check, or a lawyer can perform the legal checkup for you. Like the physician and dentist who perform your health checkups, a lawyer knows how to diagnose legal problems and prescribe cures.
During the legal checkup, you can review your family situation, finances, real estate ownership, employment, investments and business interests. If remedial action is needed, your lawyer can recommend additional services such as changing your will, preparing a durable power of attorney for elderly parents or preparing a lease for rental property.
This pamphlet reviews a few legal problems commonly uncovered by legal checkups. Your lawyer can help you resolve these and other legal problems. The legal work is often relatively inexpensive, especially compared to the costly disasters that could result from unanticipated problems.
MARRIAGE
Couples sometimes enter in prenuptial agreements or separation agreements to avoid disputes in the event of divorce.
Such contracts can deal with property rights, support, child custody and visitations. You may be able to enter into such agreements before or during marriage. Unmarried couples living together sometimes use a contract to specify their expected rights and responsibilities, and may enter agreements similar to the ones used by married couples.
Separation agreements routinely specify who, in the event of divorce, will have custody of children, and stipulate the frequency and duration of visits by the other spouse. Prenuptial and separation agreements can also address various contingencies such as selling your home and valuing one another's interest in pension plans. Such contracts might also require that a spouse pledge property to be forfeited for failure to comply with the agreement.
DIVORCE
You should consult your lawyer if your marriage is ending. You will need sound professional advice to determine child custody, financial support, and make a fair division of the property of the marriage. Your lawyer can also seek protection if your spouse threatens to assault or harass you, take your children in violation of custody or visitation rights, or hide property belonging to the marriage.
WILLS AND ESTATE PLANS
Good legal health usually includes having an estate plan with a valid will. Without a will, your property may not be distributed as you desire, extra expenses and taxes may be incurred, and some family members may inherit your property against your wishes.
Trusts are another estate-planning tool. A trust is a document that allows you to transfer property to loved ones using a trustee to carry out your instructions. Trusts created in a will are called testamentary trust. Trusts can also be created by a contract called a living trust. Living trusts can be useful estate-planning tools for everyone, not just the rich. A living trust can help you avoid probate and keep your affairs private.
Review your estate planning documents whenever important life changes take place—when you marry, have a child, move to a new state, or lose a loved one. Be sure your estate plan keeps pace with the value of your property and changes in the tax laws. Revisions can be made with a new document or an amendment to an existing one, but you should never try to make a change by writing or crossing out on your old will or trust.
BUYING AND SELLING A HOME
Beware of common pitfalls when buying and selling a home— most people's largest investment. For example, the home buyer should avoid unfavorable provisions in the sales contract, such as failure to provide for the return of the deposit if there are major defects in the home. The seller should watch out for onerous provisions in the listing contract and sales agreement, such as requirements to pay an agent's commission even if a sale is not completed. If you are buying or selling, check with a lawyer before you sign a contract. The lawyer can review the contract, handle negotiations and arrange for documents that protect your interests and complete the sale.
INJURIES
Accidental injuries can occur in your home, apartment or car, at your workplace or stores, offices and medical centers. You and your family members may be entitled to compensation from those who contributed to the injury—the driver of another vehicle, the owner of an unsafe building, the provider of improper medical treatment, the manufacturer of a defective product, or the employer with unsafe working conditions. Compensation for injuries can include reimbursement of your medical expenses and monetary damages for disability, lost income, and pain and suffering. Whether or not compensation can be recovered from the responsible party, you may be covered under your own insurance policies. Your lawyer can explain your rights and help you recover compensation from responsible parties and insurance companies in the event of such injury.
EMPLOYMENT
Legal difficulties sometimes arise in the workplace. For example, your job application may have been rejected because of your age or race, or you may have been denied a promotion because you refuse the romantic advances of a supervisor. You may have been fired illegally for refusing to break the law, failing to work on your sabbath or because of the results of a drug test.
The laws that protect employees against discrimination and unfair job actions have expanded, but frequently have strict procedures and time limits for filing claims. If you fail to take prompt action, you may lose your rights.
Your lawyer can evaluate your situation and tell you your rights. He or she can also explain legal procedures, including arbitration under a labor contract, pursuing a claim with the Equal Employment Opportunity Commission or filing a lawsuit. If a lawsuit is unavoidable, your lawyer can evaluate your chances of winning and estimate the court costs and legal fees.
BANKRUPTCY
If you are having trouble paying bills, your lawyer can advise you about your options, including credit counseling, deferred payment plans and loans. You can also obtain advice about consumer protection and bankruptcy laws. If bankruptcy is the best option, your lawyer can prepare your bankruptcy forms and serve as your advocate during the bankruptcy proceedings.
TAX PLANNING
Gifts, contributions, medical and business expenses, investments, and other expenditures can have important tax consequences. Also, births, deaths, marriage, divorce and other events can affect your tax situation. Your lawyer can advise you how to minimize your taxes and prepare the legal documents needed for your tax planning.
YOUR LAWYER
Your lawyer can help you to avoid legal problems and solve them when they are unavoidable. He or she can give you valuable advice during major events in your life: marriage, divorce, buying and selling a home or responding to an accident.
Sometimes the solution is simply the preparation of a document to protect your rights or establish your preferences. At other times, a problem may require that your lawyer start a lawsuit to protect or defend your rights.
It is important to see your lawyer early: before a problem occurs, or if there is already a problem, before it becomes more aggravated and costly. For example, if you are seriously injured in an auto accident, contact a lawyer promptly so that evidence can be gathered from the accident site and witnesses interviewed before memories fade. If you are buying or selling a home, be sure to see your lawyer before signing a contract.
A regular checkup of your legal health can be just as important as your physical and dental examinations. Legal checkups remind you of your rights and duties, detect problems, and can result in you taking action before trouble starts. Good legal health will protect your family, your home, your vehicles, your valuables and your investments. It can also provide peace of mind.
1. AUTOMOBILES
A. Accidents
B. Arrests
C. Buying a car
D. Drunk driving
E. Lemons
F. Rental cars
G. Repairs
H. Traffic tickets
I. Warranties
2. BUSINESS INTERESTS
A. Contracts
B. Corporations
C. Home business
D. Investments
E. Partnerships
F. Proprietorships
3. CHILDREN
A. Adoption
B. Disability
C. Name change
D. Guardian
E. Trust
4. CREDIT AND CONSUMER RIGHTS
A. Air travel rights
B. Bait and Switch advertising
C. Billing errors
D. Credit report errors
E. Debt collection harassment
F. Investment frauds
G. Loans–equal access and disclosures
H. Health spas
I. Mail order fraud
J. Product safety
K. Vacation homes
L. Warranties
ELDERLY PARENTS
A. Guardians
B. Durable power of attorney
C. Incapacity and disability
D. Medicare and medicaid
E. Nursing homes
F. Trusts
EMPLOYMENT
A. Benefits
B. Discrimination
C. Firing
D. Health insurance
E. Pensions and profit sharing
F. Unemployment compensation
G. Union contract
ESTATE PLANNING AND GIFTS
A. Asset list
B. Disinheritance
C. Executor
D. Funeral arrangements
E. Joint tenancy
F. Lifetime gifts
G. Life insurance
H. Notification list
I. Retirement planning
J. Trusts–living and testamentary
K. Wills
HEALTH CARE
A Anatomical gifts
B. Employer health insurance
C. Living will
D. Medical malpractice
HOUSING
A. Buying and selling a residence
B. Financing home ownership
C. Inspections
D. Home improvement contracts
E. Rental agreements
F. Real estate agents
G. Vacation property
IMPORTANT PAPERS
A. Auto title
B. Birth certificate
C. Deeds
D. Contracts
E. Employment agreement
F. Insurance policies
G. Leases
H. Living together agreement
I. Living will
J. Marriage and divorce papers
K. Military discharge papers
L. Power of attorney
M. Promissory notes
N. Separation agreement
O. Stocks and bonds
P. Will
IMPORTANT INFORMATION
A. Burial instructions
B. Social security number
C. Location of bank box key
D. List of credit cards and bank accounts
E. Name of executor, lawyer and insurance agency
INJURY
A. Auto accidents
B. Compensation
C. Defective products
D. Medical malpractice
E. Notify insurer
F. Reimbursement of expenses
G Workers compensation
H. Workplace accidents
INSURANCE
A. Amount of coverage
B. Beneficiaries
C. Insured values's and deductibles
D. Named insured
E. Types of coverage – automobile, business, health, homeowner, life, tenant
MARRIAGE AND DIVORCE
A. Collecting alimony and support
B. Child custody and visitation
C. Dividing and valuing property
D. Living together agreement
E. Marriage contract
F. Property settlement
G. Obtaining a divorce
RETIREMENT
A. Annuities
B. Government pension
C. Life insurance
D. Private pension
E. Social security
This provides general information. Laws develop over time and differ from state to state. This does not provide legal advice about specific legal problems. Let us advise you about your particular situation.
®2011by BlumbergExcelsior, Inc
Protecting Your Company's Legal Health
INTRODUCTION – AVOID PROBLEMS WITH PREVENTIVE LAW
Smart business owners and managers reduce costs and avoid legal problems with preventive law practices. With the help of their lawyers, businesses can avoid disputes, injuries, and damage claims and can help strengthen their defenses when lawsuits are unavoidable.
This pamphlet will introduce you to the value of legal checkups, legal handbooks, contract strategies and litigation strategies. Your lawyer will help you to adopt the strategies that apply to your business. Preventive practices should be much less expensive than legal problems down the road.
LEGAL CHECKUPS – DETECT PROBLEMS
Legal checkups–or legal audits–are something like an accountant's financial audit or medical examinations given by a physician.
During a legal checkup, your lawyer examines business records and practices and recommends steps that you can take to protect the legal health of your business. In a typical legal checkup, your lawyer will review documents such as your corporate charter, corporate minute book, purchase order forms, sales contracts, employment agreements, and loan agreements. Afterward you may get a written report summarizing findings and recommendations. An audit may uncover legal problems that should be corrected. For example, it may reveal that the company should revise sales contracts to limit warranties and liabilities or revise its employment applications to preserve the right to fire unsatisfactory employees.
Besides a written report, your lawyer can meet with you to explain the audit findings and recommendations and tell you how to avoid potential legal problems. At the meeting you can also learn which problems need immediate attention and which ones are less serious.
LEGAL HANDBOOKS ENSURE COMPLIANCE
Legal handbooks inform business owners and managers about the laws governing their day-to-day activities and help companies comply with state and federal regulations. They usually summarize the law and contain compliance checklists. Compliance failures can result in bad publicity, distracting lawsuits, and costly fines. Your lawyer can recommend inexpensive legal handbooks that are available from local bookstores.
A typical handbook is about 100 pages long and provides practical guidance on how to comply with the law. Some handbooks concentrate on one legal subject–such as legal restrictions on product pricing–while others cover several subjects. The most popular legal handbooks cover areas that can be hazardous to a company's legal health–compliance with antitrust, consumer protection, labor, and product liability law.
The handbooks are intended as reference guides to be kept handy on desktops and credenzas. Some companies distribute legal handbooks to all employees while other companies limit distribution.
CONTRACT – PREVENT LEGAL PROBLEMS
Contracts provide an important opportunity for you to prevent legal problems. Your lawyer can help you to negotiate contracts that will protect your rights and help you avoid disputes with your suppliers and customers.
For major equipment purchases or when buying a business, your lawyer can help you prepare a letter of intent that avoids unintended liabilities. Letters of intent are frequently used when negotiations are just beginning to document the basic terms of the business deal and to simplify further negotiations.
A carelessly drawn letter of intent can subject your company to damaging lawsuits. It is important to consult your lawyer before signing a letter of intent to protect your bargaining position in later negotiations.
After negotiations have been completed, it is important to carefully prepare and review contract documents to confirm that they reflect the business deal. It is also important that the contract documents cover contingencies that may not have been discussed during the negotiations. At a minimum the contract should contain "preventive'' provisions like remedies for default, procedures for handling disputes, provisions limiting your liability, and provisions indemnifying your company against injury and damage claims, Your lawyer can help you to review your important contracts and contract forms to assure that they protect your company against legal problems.
OTHER LEGAL STRATEGIES THAT MINIMIZE LITIGATION RISKS
Your lawyer can help you take steps to reduce the likelihood of lawsuits and win lawsuits that are unavoidable. To help you avoid lawsuits, your lawyer can recommend various procedures to be followed by managers and rank-and-file employees. Your lawyer may either undertake the company-wide legal checkup mentioned above or just concentrate on areas which present the greatest legal risks such as the hiring of employees and the sale of goods and services.
Other procedures protect your company when disputes are unavoidable. For example, your lawyer can help your company adopt proper procedures to take upon receiving legal documents. Your lawyer can also provide you with checklists of "do's" and "don'ts" for handling disputes. Checklists can be prepared for various situations–when a business deal goes sour, when an employee is injured, when a customer complains about a product or service, or when a government investigator calls the company.
SPOTTING LEGAL TRENDS THAT AFFECT YOUR COMPANY
Your lawyer can help you to spot trends and changes which may affect your company so that you can use them to your advantage. Advance knowledge of trends enables you to increase revenues and control expenses.
On the revenue side, business laws are sometimes liberalized or enforcement relaxed, sometimes opening strategic opportunities for businesses. For example, a liberalization of the Federal communication laws in the 1980's broke the monopoly of AT&T and the Bell Telephone companies. This change enabled many small businesses to offer new products and services, including telephone equipment and long distance telephone service. The products and services enabled entrepreneurs to earn additional revenues and gain new customers that used to be captives of AT&T and the Bell Telephone companies.
On the expense side, toughening of laws and tightening of enforcement may lead to unexpected costs. For example, in the 1980's Congress eliminated many of the tax incentives and benefits that had been available to businesses. Also, the IRS tightened enforcement of the regulations assessing tax liability on companies that improperly classified employees as independent contractors.
Your lawyer can advise you about ''positive'' and "negative" trends so that you can take appropriate action.
LEGAL AREAS TO WATCH
To focus your preventive efforts, consider the following list of laws to watch:
• Antitrust laws
• Consumer protection laws
• Labor laws
• Product Liability laws
When these laws change, your lawyer can help you to think preventively, show you strategic legal opportunities and suggest remedial steps to reduce legal expenses.
CONCLUSION
Preventive legal practices pay for themselves by helping you to avoid legal problems, reduce legal risks, and recognize strategic legal advantages.
Your lawyer can help keep you out of court and defend you against unavoidable lawsuits. To protect your legal health, remember to consult your lawyer when contemplating business ventures, entering into agreements with suppliers and customers, and when developing policies for personnel, sales and purchasing matters.
PREVENTIVE LAW CHECKLIST
1. BENEFITS OF PREVENTIVE PRACTICES
A. Avoid violating laws
B. Benefit from legal trends
C. Improve public relations and reputation
D. Protect officers, directors and managers from liability
2. LEGAL CHECKUPS
A. Frequency-at least annually
B. Topics
1. Antitrust compliance
2. Compliance with consumer protection laws
3. Compliance with labor laws
4. Avoidance of product liability
C. Checklists
D. Questionnaires
E. Interviews
F. Inspections
G. Examination of files
H. Monitoring of compliance and programs
3. USE OF PRINTED FORMS
A. Sales agreements
B. Purchase orders
C. Office, shop and warehouse leases
D. Equipment leases
E. Credit applications
E. Warehouse receipts
G. Employment contracts
H. Distributorship agreements
4. COMPLIANCE
A. Written guides to policies and procedures
B. Compliance calendars
C. Monitoring legislative and judicial developments
5. TRAINING AND EDUCATION
A. Legal handbooks for managers and supervisors
B. Legal newsletters
C. In-house workshops
D. Seminars and videos
This provides general information. Laws develop over time and differ from state to state. This does not provide legal advice about specific legal problems. Let us advise you about your particular situation.
®2012 by BlumbergExcelsior, Inc