Delaware Business Lawyer Blog

The mortgage company eventually approved the buyer’s application, and everybody started getting things ready for settlement. On the day of settlement, approximately 1 hour before the time set aside for the closing, the mortgage company sent out their closing instructions and documents. We prepared the HUD-1 in accordance with those instructions, and we sent the HUD-1 to the mortgage company for approval. The buyer and the sellers show up for the closing, and we start going over the figures. The buyer takes a peak at the bottom line - you know, the one that shows how much the buyer has to pay - and it shows that the buyer is getting back $2,500 (half of her deposit). Based on the settlement help from the sellers, this is exactly what the buyer was expecting.

Then we get the call. According to the mortgage company, the kind of mortgage they approved requires the buyer to pay at least 3.5% of the purchase price out of her own pocket. The deposit she paid and the application fee get counted as a part of the 3.5%, but a lot more is required. Once the calculations are done, it turned out that instead of getting back $2,500, the buyer had to pay $3,000. In order to accomplish this, the settlement help from the sellers had to be reduced significantly.

1. Surgical events (5 types of errors, including surgery performed on the wrong body part)

2. Product or device events (3 types of errors, including patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility)

3. Patient protection events (3 types of errors, including infant discharged to the wrong person)

4. Care management events (8 types of errors, including Stage 3 or 4 pressure ulcers acquired after
admission to a healthcare facility)

5. Environmental events (5 types of errors, including any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances)

6. Criminal events (4 types of errors, including death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility)

Delaware hospitals no longer charge for medical errors that are recognized by the NQF as serious adverse events. According to the Delaware Healthcare Association, this policy of not charging is supposed to show the people in Delaware that the hospitals are “committed to doing everything possible to assure quality treatment.” They can’t really be serious. First of all, how does not charging a patient for a medical error demonstrate a commitment to quality treatment? More importantly, only 9 out of the 28 serious healthcare errors are on the list of errors that the hospitals won’t charge for. Here’s the list of 9:

(1) surgery on wrong body part
(2) surgery on wrong patient
(3) wrong surgical procedure
(4) retention of foreign object not designed to be retained in body
(5) incompatible blood-associated injury
(6) air embolism-associated injury
(7) medication error leading to serious injury or death
(8) artificial insemination/wrong donor
(9) newborn infant discharged to wrong family

Here’s how the conspiracy theory works. The plaintiff tries to show that there was a conspiracy, and that one of the conspirators transacted business in Delaware. The theory is that the transaction of business in Delaware by the conspirator is attributable to the non-resident defendant. The Court considers a co-conspirator to be an agent of the non-resident conspirator.

The Delaware Supreme Court has established a 5-part test for applying the conspiracy theory of personal jurisdiction over non-residents. The Court said:
“We therefore hold that a conspirator who is absent from the forum state is subject to the jurisdiction of the court, assuming he is properly served under state law, if the plaintiff can make a factual showing that:
(1) a conspiracy to defraud existed;
(2) the defendant was a member of that conspiracy;
(3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state;
(4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and
(5) the action, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy.”

In cases where the negotiations do not progress promptly to a conclusion, but, after considerable delay, are finally satisfactorily concluded between the principal and the purchaser, close questions arise. In such cases, the courts have evolved a subsidiary rule that in order for the broker to be the procuring cause of the sale, it must appear that there was no substantial break in the negotiations. Whether there was a substantial break in the negotiations depends not so much on lapse of time as upon the chain of circumstances.

A principal has the privilege of taking over the negotiations from his agent, after introduction of the prospect, and acting on his own behalf in the consummation of the transaction. Such substitution by the principal of himself for his agent, per se, does not amount to a dismissal of the broker. And the action of the principal in so doing does not become an intervening or predominant cause such as will constitute a break in the chain of causation that, otherwise, would "lead directly" from introduction to consummation and constitute procuring cause.

There are two exceptions to the general rule.

(1) if, after producing the prospect, the broker was dismissed by his principal in bad faith as a device to avoid the commission.

In June 2009, Delaware’s General Assembly established a Teen Dating Violence Task Force. The Task Force was given the responsibility of submitting a report containing recommendations for schools relating to policies on teen dating violence. The report has been written, and here are some of the highlights:

First and foremost is the adoption of the following definition of dating violence:
“Dating violence shall be defined as a pattern of assaultive and controlling behaviors that one person uses against another in order to gain or maintain power in a current or past relationship. The abuser intentionally behaves in ways that can cause fear, degradation, humiliation, injury or harm or uses any other coercive behaviors to control the other person. Abuse can occur in both heterosexual and same-sex or serious and casual relationships and covers a wide range of behaviors that includes harassment, verbal, emotional and economic abuse, sexual abuse, stalking, and physical abuse.”

The Task Force did some research into what other states are doing about this problem, and noted that “in 2009 and 2010, twenty-two (22) states introduced or enacted legislation that directs their Department of Education to implement policies for reporting and responding to dating violence and/or required schools to provide dating violence education.”

Examining the social implications of dating violence, the Task Force found that “dating violence involves a pattern of coercive, manipulative behavior that one teen uses against the other for the purpose of establishing and maintaining power and control.’

And, the Task Force explained why it is so important to establish school policies: “teen dating violence is a threat to school safety and undermines our schools’ capacity to accomplish their core mission, academic achievement.”

When the attorney for the mortgage company starts a foreclosure lawsuit in the Court, he must also send to the homeowner the following things:
(1) a document called “Special Notice Hotline Flyer”
(2) a hotline number
(3) a Universal Intake Form, and
(4) a Foreclosure Intervention Counseling Client’s Checklist

The Special Notice Hotline Flyer informs the homeowner that they should seek counseling with a HUD certified counseling agency by calling the hotline number. The Flyer also gives the homeowner information about the mediation program.

If a homeowner wants to enter the mediation program, they should meet with a HUD certified counseling agency and submit a completed Universal Intake Form to the mortgage company’s attorney and Delaware Volunteer Legal Services. In order to qualify for the mediation program, the homeowner and the counselor have to prepare a good faith proposal for making monthly mortgage payments. The monthly payment includes principal and interest, as well as escrows for taxes and insurance. These payments cannot exceed 38% of the homeowner’s gross monthly income, the repayment term cannot be more than 40 years, and the interest rate cannot be less than 2%.

Believe it or not, a surprising number of patients get discharged from hospitals against medical advice. This is the first article in a series of articles which discuss the problem. In this article, we’ll focus on what the form typically says.

Above the doctor’s signature are the following statements:
(1) In my best judgment, the patient is alert, oriented, and has the ability to understand his or her current situation.
(2) I have explained to the patient in clear language the nature of his or her medical problem and what the outcome may be if not treated.
(3) The form then has a place for the doctor to indicate what the diagnosis is, and another place for the doctor to write down the possible consequences of non-treatment.

At the bottom of the form is a place for the patient’s signature, and the following language: “I do hereby release and hold harmless the hospital, its employees, and the medical staff of and from any and all liability which may arise from my departure from the hospital against the advice of my physician.

Imagine a case where the doctor writes on the form that a possible consequence of non-treatment is ‘you may die.” Now imagine that the patient leaves anyway, and then dies the same day.

An important issue is the patient’s capacity to really understand the risk of leaving. We’ll talk about this in the next article.

In the past, if a nursing home violated the standards set by the Federal Nursing Home law, the only risk to the nursing home was that the state or federal government might take action if the violations were discovered. This hardly ever happened because inspections were few and far between. As a result, nursing homes didn’t worry too much about being caught. But now, each and every resident of a nursing home is basically keeping an eye on the nursing home and can sue the nursing home to enforce the standards whenever there’s a violation. This is like having a cop on every street corner, and so hopefully nursing homes will make a much greater effort to provide the quality of care that’s required.

A bloodstream infection occurs when live bacteria (or other germs) travel through the catheter and invade the bloodstream.

I’ve previously written about hospital-acquired infections. These are infections that patients acquire during the course of receiving treatment in a hospital for other conditions. It’s estimated that about 99,000 patients die each year from hospital-acquired infections. According to the Centers For Disease Control, of these 99,000 deaths, approximately 30,000 deaths are caused by catheter-related bloodstream infections (CRBSIs). Studies show that almost 100% of CRBSI’s could be prevented if hospital workers would:
(1) wash their hands with soap;
(2) clean patient's skin with an effective antiseptic;
(3) put sterile drapes over the entire patient;
(4) wear a sterile mask, hat, gown and gloves; and
(5) put a sterile dressing over the catheter site.

To show how outrageous it is that these infections occur, Medicare has classified CRBSIs as “never events” (meaning they’re preventable) and will no longer reimburse hospitals for the costs they incur due to these kinds of infections.

In Delaware, there’s a law called the “Hospital Infections Disclosure Act”. Under this law, a hospital-acquired infection is one that was not present or incubating at the time the patient was admitted to the hospital. Hospitals in Delaware are required to report health-care acquired infections to the Department of Health & Social Services. The purpose behind this law was to make available to the public information about the risk of hospital-acquired infections in each of the following hospitals:
AI duPont Hospital for Children;
BayHealth Medical Center – Kent General Hospital;
BayHealth Medical Center – Milford Memorial Hospital
Beebe Medical Center;
Christiana Care Health System – Christiana Hospital;
Christiana Care Health System – Wilmington Hospital;
Nanticoke Memorial Hospital; and
Saint Francis Hospital

An Advisory Committee that was established under this law decided that the first thing to be reported by these hospitals would be central line associated blood stream infections from the Intensive Care Unit (ICU) in each of Delaware’s hospitals. It’s unfortunate that the reporting requirements are limited to the ICU’s because the risk of hospital acquired infections exists throughout the entire hospital, and reports of infections in ICU’s does not provide the public with the information the law was designed for.

The Delaware Courts which have dealt with this issue say that the conduct of an employee is within the scope of his employment if:
(a) the employee’s actions are the kind of conduct he is employed to perform;
(b) the employee’s actions take place within the authorized time and space limits; and
(c) the actions are taken, at least in part, for a purpose to serve the employer.

Using these guidelines, the mere fact that an employee happens to be driving his employer’s car at the time of the accident is not enough to make the employer liable for the employee’s negligence.

I don’t want to leave you with the impression that an employer can never be held liable for an employee’s negligent operation of a car unless the injured person can prove scope of employment. I bring this up because an employer, or for that matter, any owner of a car can be held liable for the driver’s negligence under a doctrine known as “negligent entrustment.” An employer or any other owner of a car will be held liable for injuries caused by the driver’s negligence if the injured party can prove the following:
(1) entrustment of the automobile by the owner;
(2) to a reckless or incompetent driver such that in said driver's control the automobile becomes a dangerous instrumentality;
(3) the owner knows or has reason to know that said driver is reckless or incompetent; and
(4) said driver causes damage to the property or person of another by his operation of the automobile.

One interesting site is from a non-profit group called "Break The Cycle." Here's a brief excerpt:
Teen dating violence is an urgent, silent epidemic. One in three teens will experience abuse in a dating relationship and more than two-thirds of them will never report it to anyone. Break the Cycle believes everyone has the right to safe and healthy relationships. We are the leading, national nonprofit organization addressing teen dating violence. We work every day towards our mission to engage, educate and empower youth to build lives and communities free from domestic violence.

Break The Cycle publishes a State Law Report Card which surveys the civil domestic violence protection order laws of all fifty states and the District of Columbia, assessing their impact on teens seeking protection from abusive relationships. The State of Delaware earned a grade of "B" on its report card for 2010.

Invisible Victims: Holding the Educational System Liable For Teen Dating Violence at School written by Christine N. Carlson

Schools have a unique responsibility to address the issue of dating violence for several reasons. First and foremost, schools force contact between a batterer and a victim in a way that most other environments do not

Second, schools have a duty to provide protection for their students, including safeguarding them from physical harm inflicted by other students.

Third, schools have a unique opportunity to affect a teen abusers behavior to a greater degree than actors in most other settings.

Fourth, schools and school districts are liable for sexual harassment that occurs on school campuses if the harassment is known to a school authority figure who has the power to stop the harassment but ignores the problem or does not address it sufficiently.

CDC

Teen Dating Violence Prevention:On-Line Tips and Tools For Educators

Teen Dating Violence

Understanding Teen Dating Violence

As far as I can tell, Delaware is lagging behind some other states in protecting young girls from teen dating violence. The only law on the books at this time is one that allows persons in a current or former substantive dating relationship to apply for a domestic violence protective order. However, it also appears that Delaware is finally getting the message. Here are the most recent actions by Delaware’s General Assembly.

Last year, for example, Delaware created a Teen Dating Violence Task Force to evaluate and make recommendations on policies for Teen Dating Violence Awareness Education in Delaware. The reason the task force was created was because teen dating violence has become a prevalent problem in high schools, junior high schools and middle schools throughout the U.S. The Task Force was required to submit its written report and recommendations by May 1, 2010. It appears that there’s been some sort of delay, and I’m looking into it.

In the meantime, the month of February of 2010 was designated as Teen Dating Violence Awareness and Prevention month in the State of Delaware. The basis for designation was the following:

(1) approximately 1 in 4 adolescents report verbal, physical, emotional, or sexual abuse each year;

(2) 61% of teens in a relationship say that a partner has made them feel bad or embarrassed about themselves;

(3) 40% of teenage girls between 14 and 17 years of age reported being physically abused or sexually abused by a dating partner;

(4) 1 in 4 teens in a relationship say they have been called names, harassed, or put down by their partner during cell phone conversations and in text messages;

(5) 2/3 of these teens were with someone who they said acted jealously and who regularly asked where and with whom they were;

(6) almost 1/3 of girls who have been in a relationship said they’ve been pressured to have sex or to engage in sexual acts when they didn’t want to do so;

(7) 25% of pregnant teens reported being physically abused by their boyfriends, and half of those pregnant teens said the battering began or intensified after their boyfriends learned of their pregnancy;

(8) violent relationships in adolescence can have serious ramifications, causing victims to be at a higher risk for substance abuse, eating disorders, risky sexual behavior, unplanned pregnancy, suicide, and adult re-victimization;

(9) a study of adolescents and college students revealed that date rape accounted for 67% of sexual assaults;