After a searing summer, the temperature is turning steadily colder as we approach the end of the year and prepare for the promise of new things to come. This month’s edition is packed with a diverse range of articles, touching upon topics sure to be of interest to legal practitioners and business leaders alike. In our cover feature for this month, we discuss the newly unveiled Retained EU Law (Revocation and Reform) Bill and the impact it has made in the legal sphere, among other emerging UK matters. While overlooked in some corners as national attention is directed towards the economy, parts of the Bill may have a significant effect on both individuals and firms alike. You can find our analysis on page 12. Also featured in this edition are Lidia Casselman, Karen Beach and Julie Stather, who each grace the My Legal Life and Expert Insight sections. Their features discuss elder mediation, psychiatric malpractice defence and family arbitration, all placed in context with the authors’ own advice to less experienced practitioners in these areas. They are all enlightening and well worth a look, even for those unfamiliar with their respective sectors. Elsewhere in this magazine are a broad array of further articles on topics as varied as digital transformation and identifying negligence in nursing homes. In addition to our monthly rundowns on developing legal stories and lawyer moves, the Expert Insight and Thought Leader sections are bursting with inspiring pieces on arbitration, healthcare, personal injury law, legal tech and other sectors. We hope that you enjoy this edition. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine OCTOBER 2022 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith email@example.com Sales Enquires: Jacob Mallinder Jacob.firstname.lastname@example.org
6 Monthly Round-Up 8 Lawyer Moves FEATURE OF THE MONTH 12 Legislative Overhaul: Examining the Retained EU Law Bill Oliver Sullivan, Editor, Lawyer Monthly MY LEGAL LIFE 18 Karen Beach Defending Psychiatric Malpractice Claims 24 Lidia Casselman The Principles of Elder Mediation SPECIAL FEATURES 32 Five Tips to Market a Corporate Law Firm Jemima Myers, Social Chameleon Marketing 36 Why Legal Clients Should Never Pay Ransoms Lawrence Perret-Hall, CYFOR Secure 40 Digital Nomad Visas: A New Solution to Working Abroad? Alex Christen, Capital Law 44 Three Software Development Questions Law Firms Should Ask Themselves Leanne Aldrich, Amdaris 48 When is a Director Liable for Their Company’s Tortious Acts? Hannah Sharp, Rosling King 52 Digital Horizons: The Four Stages of Law Firm Transformation Jamie Jefferson, Equator EXPERT INSIGHT 58 The Adoption of ADR in Ghana Beyeeman Akyea, Zoe, Akyea & Co 62 Getting Started in Elder Law Chip Nation, The Law Office of HH Chip Nation, LLC 66 Trends and Developments in Hong Kong Construction John Lau, Independent Arbitrator, Adjudicator and Mediator 70 The Family Arbitration Scheme: The Future of Family Justice Julie Stather, Barrister/Mediator/Arbitrator 74 End-of-Life Planning: Supporting Clients Through Challenges Nikki Mitchell, Mitchell, Brown & Associates LLC 78 Asset Protection and Emergency Medicaid Qualification Samantha McCarthy, McCarthy Law LLC THOUGHT LEADER 84 The Fundamentals of Turnaround and Restructuring in Ireland Jamie Ensor, Dillon Eustace 88 The Development of Arbitration in Hong Kong Joe Liu, JLIU Dispute Resolution 92 Saudi Arabia’s Judicial System Under the Era of King Salman bin Abdulaziz Abdullah Al-Dosari, EKTISAB Law Firm 96 Identifying and Tackling Nursing Home Abuse Jonathan Rosenfeld, Rosenfeld Injury Lawyers LLC TRANSACTIONS 100 What’s Happening in the World of M&As and IPOs? Contents 24 18
Monthly Round-Up OCTOBER 2022 Trump Family Sued for ‘Exaggerating Net Worth by Billiions’ Celsius CEO Resigns in Midst of Bankruptcy Proceedings Alex Mashinsky, CEO of bankrupt cryptocurrency lender Celsius, submitted a letter of resignation on 27 September, according to a company press release. McConney. On top of an order preventing the Trump family from leading any company or purchasing any property in New York, the lawsuit also seeks a $250 million judgement. James stated in a social media post that the suit alleged more than 200 cases of fraud over a period of 10 years. If enacted, she said, the penalties called for in the suit would be a “death penalty” for the Trump Organisation. The Trump Organisation denied any wrongdoing. In a social media post, Trump described the legal action as “another witch-hunt”. The news comes on the heels of further legal troubles for the former president as a threejudge appeals panel ruled that the criminal investigation into classified documents seized from his Mar-a-Lago estate could proceed. $12 billion in assets under management and more than $8 billion in loans to clients. However, a year-long crypto bear market and the collapse of the Terra ecosystem (which wiped out more than $60 billion in value in May), Celsius was forced to halt withdrawals in June before filing for bankruptcy a month later. In the release, Mashinsky stated that though he was retiring effective immediately, he would still continue to help the company provide creditors with the “best outcome”. The company’s own CEL crypto token fell 8% upon the news. “I regret that my continued role as CEO has become an increasing distraction, and I am very sorry about the difficult financial circumstances members of our community are facing,” Mashinsky wrote. His exit comes months after Celsius filed for Chapter 11 bankruptcy protection. As recently as May 2022, Celsius was one of the largest players in the cryptocurrency space, with more than Former US President Trump and his children have been accused of ‘persistent and staggering’ fraud in the name of inflating their personal net worth. New York attorney general Letitia James has filed a lawsuit against Donald Trump and three of his children to prevent them from doing business in the state, alleging “years of bank, tax and insurance fraud”. The 220-page civil suit, filed in State Supreme Court in Manhattan, details allegations that the Trumps lied about the value of their real estate assets “by billions of dollars” in order to inflate their personal net worth. Through this fraud, Trump was able to secure favourable loans and, in cases where he undervalued his property, tax benefits. Trump, Donald Jr, Ivanka Trump and Eric Trump were each named as defendants, along with Trump Organisation executives Allen Weisselberg and Jeffrey 6 LAWYERMONTHLYOCTOBER 2022 Trump photo credit: WikiCommons - Gage Skidmore fromPeoria, AZ, United States of America https://creativecommons.org/licenses/by-sa/2.0/deed.en
FCA Encouraged to Investigate Whether Conservative Party Allies Engaged in Insider Trading 22% of Law Firms Fail to Check Clients Against Sanctions The City of London financial conduct watchdog has been asked by the opposition to investigate whether leaks of chancellor Kwasi Kwarteng’s September ‘mini-budget’ enabled billionaire hedge fund investors to make “small fortunes” by shorting the British pound. New research has revealed that law firms are neglecting to check whether their clients are subject to governmental sanctions. against Russia by the UK prior to the beginning of the February invasion of Ukraine, which has resulted in a further 7,200 individuals and 1,250 entities being added to the sanctions list. The survey forms part of SmartSearch’s ongoing Electronic Verification Uncovered campaign. Focused on digital onboarding, the campaign is pushing firms to switch to electronic verification in order to avoid doing business with legally problematic clients. current rate of 2.25% to as much as 5% by February. The Bank of England stated after the market closed on 26 September that it would not make a new decision regarding interest rates until the next meeting of its monetary policy committee, to be held in November. However, it stated that it would “not hesitate to change interest rates by as much as needed” to bring inflation back down to its 2% yearly target. of a damaging breach of regulations. Creek described negligent firms as “giving a green light to Russians looking to circumvent sanctions” and reiterated that an unintentional breach of sanctions is not a valid defence. The new information comes on the back of another recent report from the Commons Foreign Affairs Committee showing that the government is still struggling to tackle wealthy Russians who are using UK organisations to launder money. 2,500 sanctions had been placed ties to the Conservative Party to benefit. The controversy comes amid heightened market volatility. Kwarteng’s minibudget, which contained £45 billion worth of unfunded tax cuts aimed at higher earners, was picked apart by analysts who speculated that it could cause the pound to fall closer to parity with the dollar. Investors are also guessing whether the pound’s dramatic plunge may cause the Bank of England to raise interest rates past their A new release by SmartSearch, a leading provider of AML software in the UK, has revealed that 22% of legal firms admit to not checking that new customers are not subject to sanctions or Politically Exposed Person (PEP) lists. The figure comes from a survey of 500 decisionmakers in the legal, property and finance banking sectors conducted in May. Lawyer and SmartSearch managing director Martin Creek pointed out that these firms run the risk Tulip Siddiq, shadow economic secretary to the Treasury, urged the Financial Conduct Authority to determine whether these investors might have knowingly used insider information to profit from the devaluing of sterling. On 26 September, the pound fell to $1.03 against the dollar – its lowest level in history. The currency regained some of its lost value as speculation rose that leaked details of Kwarteng’s mini-budget had allowed investors with close MONTHLYROUND-UP 7
Lawyer Moves RECENTAPPOINTMENTS FROMACROSS THEGLOBE International law firm DAC Beachcroft has bolstered its Singapore office through the hire of partners Summer Montague from RPC and Andrew Robinson from DLA Piper. Montague is a commercial disputes lawyer specialising in insurance and reinsurance, with a particular focus on handling complex cross-border insurance and reinsurance disputes relating to property, onshore and offshore energy, power generation, mining and construction risks. She is greatly experienced in advising on product recall policies and in handling product liability claims in Asia, Europe and the US, particularly in the technology, pharmaceutical and automotive Robinson advises on insurance and reinsurance matters with specific expertise in large-scale international financial lines and professional indemnity disputes, ESG and regulatory and compliance issues and dealing with substantial casualty losses. He also has a strong practice focus on cyber risks and data security, as well as indepth experience of litigation, arbitration and mediation forms of dispute resolution, regionally and globally, for both public and private entities. “We’re delighted to have Summer joining us and to welcome Andrew back to DACB as well,” said Julian Teoh, partner and head of DAC Beachcroft Singapore. “Here in Singapore, having Summer and Andrew on board, as well as aviation specialist Hermanto Moeljo who joined last year, we are even better placed to support our clients in this key region.” Expansion in Singapore is the latest step DACB has taken to bolster its international offering. Earlier this summer, the firm signed a cooperation agreement to expand its relationship with BLD Bach Langheid Dallmayr, the market-leading insurance and liability law firm in Germany, creating an alliance of more lawyers in Europe than any other insurance-focused law firm. Armstrong Teasdale has announced the promotion of Molly Ahmed to Of Counsel and Emma Shaw to Senior Associate Solicitor as of 31 August 2022. Both work in the firm’s London office. Ahmed has extensive experience litigating a broad range of international commercial disputes. With a diverse background across service areas, including finance and banking, corporate, M&A, private equity, employment, technology and IP litigation, she is able to provide guidance in multifaceted, high-value commercial disputes, often across multiple jurisdictions. Shaw advises on corporate and commercial disputes across a broad range of sectors. She acts for both claimants and defendants in a wide variety of High Court and arbitral proceedings. She also has extensive experience in defending actions in the Court of Appeal. With particular strength in contentious sport matters, Shaw advises high-profile clients including The All England Lawn Tennis Club (Wimbledon), football clubs and rugby unions on the enforcement of ticket terms and conditions. Shaw also has considerable experience in civil contempt proceedings against individuals who breach Court orders, including three successful outcomes before the Court of Appeal. She was recognised among The UK Legal 500 for Sport in 2020, and as a Rising Star in 2022, for her enthusiasm, industry knowledge and client management. International law firm Bird & Bird has announced its appointment of Niel Liebenberg as a partner in its Aviation team in Singapore. He joined the firm on 30 August. Liebenberg joins Bird & Bird from his role as general counsel of China Aircraft Leasing Company Limited. He specialises in aircraft leasing and financing and has over 24 years of private practice as well as in-house legal experience. With his strong reputation as a senior figure in the Asian aviation market, and his in-depth knowledge of the industry, Liebenberg’s appointment is a key part of Bird & Bird’s strategy for the Asia-Pacific region (APAC) as the firm continues to expand its Aviation team. Liebenberg will focus on growing the Bird & Bird team’s capabilities on projects across all facets of the aviation industry and will work closely with the firm’s colleagues across Asia, including in Singapore, Hong Kong SAR and mainland China to support key clients across the region. “Niel is a key player in the APAC aviation market, and we are thrilled to have him on board in Singapore,” said Lorraine Tay and Sandra Seah, co-heads of Bird & Bird’s Singapore office. “We are confident that with his specialised experience from within industry and as a private practitioner, Niel will boost the firm’s capabilities even more, as we continue to grow our Aviation team in the region.” DAC Beachcroft Hires Two Partners to Singapore Office Armstrong Teasdale Promotes Two UK Lawyers Bird & Bird Bolsters Aviation Team With New Partner Hire Singapore DAC Beachcroft Singapore Bird & Bird London, United Kingdom Armstrong Teasdale 8 LAWYERMONTHLYOCTOBER 2022
Dechert LLP has announced the return of Colin Sharpsmith as a partner in the firm’s financial services and investment management practice based in London, strengthening its financial services regulation capability. His return to the firmmarks the seventh lawyer to return to Dechert as a partner in 2021-2022. Sharpsmith has broad experience in financial services regulation, with a particular focus on investment funds and the rules governing their management and marketing in the UK and Europe. Previously an associate at Dechert, Sharpsmith is well respected within the wider industry and has been a key member of regulatory working groups such as the AIMA working group for the FSA’s first Remuneration Code. “Colin’s wide-ranging regulatory expertise advising asset managers and private equity firms will be an excellent addition to our investment management practice in London,” said Gus Black, co-chair of Dechert's global financial services group and chair of Dechert’s London Management Committee. “Colin’s return also speaks to our culture. We are thrilled to welcome him back.” Sharpsmith also commented on his reappointment. “It’s a very exciting time to be rejoining Dechert’s growing asset management practice. I am looking forward to being reunited with my former colleagues in London and helping drive the firm’s future growth in the financial regulatory space,” he said. Outside the office, Sharpsmith is an advocate for minority and disadvantaged youth. He has been a mentor with the charity African & Caribbean Diversity and volunteered for Reading Partners to support students with career development and education. Hogan Lovells has welcomed finance and fintech partner Bryony Widdup to its Corporate & Finance practice group, to be based in its London office later this autumn. An experienced banking and capital markets lawyer, Widdup advises funds, lending platforms, digital assets and blockchain-based offerings on their fundraising solutions. With over 15 years’ experience advising clients in the financial markets sector, Widdup has worked within a major European bank as well as in private practice, most recently holding the position of partner at DLA Piper. Her practice focuses on finance for funds, a broad range of lending platforms (including blockchainbased offerings) and digital assets including token structuring and issuance. She also advises on sustainable finance and investment solutions, with a particular focus on advising the crypto and digital assets sector on its net zero transition. Widdup also contributes to the sector through her roles as a member of the Advisory Council for Global Digital Finance and co-chairing the Stablecoin and Digital Assets ESG working groups. As a member of City UK, she also tackles some of the most pressing issues facing the sector. “Bryony is a talented finance lawyer with a great market reputation among the more traditional and evolving financial market players,” said James Doyle, Global Head of Lovells’ Corporate & Finance practice. Her appointment further bolsters our Digital Assets and Blockchain practice to meet the growing demand from this rapidly evolving market, while also enhancing our fund finance practice.” In a statement of her own, Widdup said: “I’m thrilled to be joining Hogan Lovells at a time when the proliferation of digital assets is driving real change across the financial services markets. “Hogan Lovells is at the vanguard of advising clients on the potential of digital assets and blockchain and its platform will enable me to continue supporting the fundraising needs of these sector clients.” Former Financial Services Partner Returns to Dechert Hogan Lovells Makes London Finance and Fintech Partner Hire London, United Kingdom Hogan Lovells London, United Kingdom Hogan Lovells LAWYERMOVES 9
It is an understatement to say that the UK is going through a tumultuous period. September alone has seen the emergence of a new head of state, a new head of government, and the escalation of an economic crisis projected by some analysts to potentially rival the 2008 financial crash. Against this backdrop, the newly formed government has published the Retained EU Law (Revocation and Reform) Bill 2022, generating further questions for the trajectory of the country. What are the contents of the Bill, and what does it mean for UK firms and the average citizen? Overleaf, we take a deep dive to find out more. FEATURE OF THE MONTH
12 LAWYERMONTHLYOCTOBER 2022
LegislativeOverhaul Examining the Retained EU LawBill Between the United Kingdom’s formal withdrawal from the European Union on 31 January 2020 and the end of the Brexit ‘transition period’ on 31 December 2020, the UK government created a category of domestic legislation consisting of EU statutes that had been kept, unchanged, as part of UK law, as well as other laws that were influenced by or derived from them. These retained EU laws (REUL) covered employment law, environmental regulation, data protection, IP law and other areas. The UK government published the Retained EU Law (Revocation and Reform) Bill on 22 September 2022. If enacted, REUL will lose the special status it currently enjoys and eventually become subject to revocation. Depending on the actions the government chooses to prioritise prior to this, the knock-on effects could be extensive. But how, and what would be affected? Written By Oliver Sullivan FEATUREOF THEMONTH 13
A Concerned Response Reactions to the Bill among the legal sector have trended towards the negative. Richard Arthur, Head of Trade Union Law at Thompsons Solicitors, led the way by branding it “the biggest, and most catastrophic, demolition of workplace rights in generations”, and Scottish ministers issued an open letter to the UK government asking that the new law and its apparent abrogation of devolved powers be reconsidered. Some analysts have expressed surprise over the Bill’s apparent transfer of legislative powers relating to retained EU law to the executive branch, and away from Parliament. As ministers will be empowered to make changes to REUL via statutory instrument (SI), which receive limited scrutiny from Parliament, such changes are unlikely to garner due challenge from MPs (only 17 SIs have been voted down in the House of Commons in the past 65 years, and none since 1979). The possibility of certain employmentrelated pieces of REUL being sunset also raises issues of legality. Under the Trade and Cooperation Agreement signed by the UK and EU, both parties agreed to not to weaken their labour standards – including all fundamental workplace rights, health and safety standards, employment standards and working condition standards – below the levels that were in place in 2018. This would be contravened if any REUL measure protecting such rights were sunset without a replacement of at least equal strength and specificity. Employment, Environment and Other Zones of Impact Over 2,400 pieces of REUL are currently in force in UK law. Since its announcement of the Bill, the government has made few statements to indicate which parts of this body it intends to drop or keep should it be passed. In effect, all areas of secondary UK legislation that are defined in whole or in part by EU law are assumed to be ‘at risk’. One of the most profoundly implicated areas is employment law. REUL laws are integral in preserving, among other rights, such as: - TUPE protections; - Working time and paid holiday guarantees; - Certain health and safety regulations; - Information and consultation rights; - Rights of part-time workers, agency workers, posted workers and fixed term employees. Also at risk are the EU-derived collective consultation requirements laid out in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, a stipulation that trade unions are likely to fight to preserve if no move is made to preserve it spontaneously. Additional targets include crucial environmental and rural affairs legislation, which had largely been devolved to national governments. Around 570 laws relating to habitat protection, water quality and sewage pollution could, if removed, result in a number of the country’s specially protected sites become open to development, as wildlife organisations have noted. Food standards, such as the required use of decontaminants on meat products and chlorine washes on chicken, also hang in the balance. Beyond the health implications of having such rules revoked, there would also be implications for exports into European markets still operating according to EU laws. Principles of the Bill The intention of the Bill, per the cabinet’s statements, is to “ensure that only regulation that is fit for purpose and suited for the UK will remain on the statute book”. As such, all REUL will be revoked on 31 December 2023, or at a later date prior to 23 June 2026 if a consensus to delay is reached. Members of Parliament will need to take positive action in order to determine which elements of these statues will be codified into UK law while the remainder are ‘sunset’. The Bill will also do away with all status protections associated with REUL, granting ministers the power to reverse the order of supremacy in law and securing domestic law as “the highest form of law on the UK statute book”. Further to this, the Bill seeks to guarantee courts greater discretion in departing from REUL case law and to recategorise all preserved REUL as ‘assimilated law’. However, rights contained in primary legislation (that is, laws passed as an Act of Parliament), such as the Equality Act, should be exempt from these effects. 14 LAWYERMONTHLYOCTOBER 2022
An Uncertain Future With 2,400 REUL measures at play, there are altogether too many possible futures for this Bill to give concrete advice on how businesses ought to prepare for its effects. Either unprecedented deregulation or a return to ‘business as usual’ are both believable scenarios. The Bill has also arrived against a backdrop of strife within the UK. September also saw the death of Queen Elizabeth II, the confirmation of Liz Truss as Prime Minister and the announcement of a ‘mini-budget’ that has prompted a dive in the value of the pound, exacerbating an already severe cost of living crisis. With such uncertainties already looming, it is likely that the need to remain aware of shifts in employment law will prove to be an additional burden on employers – and when taken together with the government’s continued grappling with the Northern Ireland Protocol, it seems certain that investors will reconsider new commitments in the UK until some of these questions are soundly answered. Lawyer Monthly will continue to monitor the Bill’s progress through Parliament, as well as the waves it will leave throughout the legal sphere. FEATUREOF THEMONTH 15 Either unprecedented deregulation or a return to ‘business as usual’ are both believable scenarios.
Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. The October edition’s headline guests are Lidia Casselman of Access Mediation Services and Karen Beach of Tanoury, Nauts, McKinney & Dwaihy. In the upcoming features, the two delve into their areas of specialisation – elder mediation and the defence of psychiatric experts, respectively – as well as the insights they have gleaned from their storied professional careers. MY LEGAL LIFE
Karen Beach recover most of the damages available under Michigan law, although some limitations have been enacted to curb unreasonable damage awards that can drive up the cost of malpractice insurance. In general, plaintiffs can recover past and future economic damages, including medical expenses and lost wages. Plaintiffs can also recover past and future noneconomic damages, namely pain and suffering but also humiliation and mental anguish. After the jury awards values for these damages on the verdict form, the trial court must adjust the numbers to meet certain statutory requirements. For noneconomic damages, the amounts awarded must be reduced to meet a statutory cap on noneconomic damages in In Michigan, medical malpractice occurs when medical care falls below the standard of care applicable to the treatment at issue and causes injury to the patient. The standard of care is defined in each case by what a reasonable practitioner of the same medical specialty would or would not do under similar circumstances. In a psychiatric malpractice case, therefore, the jury would determine whether the defendant did what a reasonable psychiatrist would have done under similar circumstances, and if not, whether the defendant’s actions caused injury to the patient. Both parties must retain expert witnesses who practise in the same specialty as the defendant, and those experts help the jury determine whether the standard of care was breached and whether any breach caused injury to the patient. Medical malpractice plaintiffs can 18 LAWYERMONTHLY SEPTEMBER 2022 My Legal Life Defending Psychiatric Malpractice Claims Medical malpractice is a highly specialised format of personal injury law, and psychiatric malpractice more specialised yet. Laws and statutes governing aspects such as culpability, investigation and compensation can differ greatly from those involving other types of professional malpractice, requiring different processes to be undertaken during litigation. Karen Beach, principal at TNMD, gives us a clearer look at psychiatric malpractice cases and how they are defended in the US and Michigan. OCTOBER 20 2
medical malpractice cases. The cap amount is adjusted annually and is higher for cases involving loss of limb function, loss of mental capacity, or injury to reproductive organs resulting in the inability to procreate. For economic damages, any collateral source benefits payable from other sources (such as Social Security or unemployment benefits) must be subtracted from the same category of damages. Michigan also requires all future damages, economic and noneconomic, to be reduced to present value at the rate of 5% per year, compounded annually, for each year in which those damages will accrue. All of these reductions create a judgment which can be millions of dollars less than the amounts the jury awarded. Psychiatrists are less likely to be sued than other types of physicians. Allegations of psychiatric malpractice often concern an alleged failure to properly diagnose or treat suicidal or homicidal patients (resulting in suicide, homicide or injury to other patients). One common fact pattern is a patient who dies by suicide in the days immediately following his or her release from a psychiatric facility. In those cases, plaintiffs often struggle to establish the requisite causal link between the defendants’ actions and the patient’s suicide. They must demonstrate, without relying on speculation, that the patient would not have died by suicide ‘but for’ the decision to discharge the patient. Depending on how remote in time the suicide is from the discharge and what other intervening factors may have affected the patient’s mental status, causation can be difficult to prove. This ‘but for’ causation standard applies in all medical malpractice cases, and defendants frequently file dispositive motions asserting that the plaintiff cannot meet that standard. Michigan has a statute, MCL 330.1946, imposing a duty upon psychiatrists and other mental health professionals to take action upon learning a patient has the apparent intent and ability to physically harm a reasonably identifiable third party. The duty can be discharged by hospitalising the patient or warning Psychiatrists are less likely to be sued than other types of physicians. 20 LAWYERMONTHLYOCTOBER 2022
the third party or the police about the threat. A psychiatrist who complies with the statute does not violate Michigan’s physician-patient privilege. However, a psychiatrist who otherwise discloses privileged communications or information without the patient’s authorisation can be sued for malpractice for breaching his or her duty of confidentiality. Where there is no clear statutory authorisation for breaching patient confidentiality, investigation into a potential violation of the Michigan Public Health Code, or a potential ground for disciplinary action by the state Board of Medicine. In Michigan, anyone can submit an allegation that a licensed health professional has violated the Public Health Code. Common allegations include poor quality of care, treatment outside of the professional’s scope of practice and billing for services not rendered. Investigations can also be triggered by reported malpractice settlements, awards or judgments (three or more in a five-year period or any number totaling more than $200,000 in a five-year period), failure to meet continuing medical education requirements, failure to timely renew a professional license, failure to report a criminal conviction, or other technical violations of the Code. An investigation begins when the Bureau a psychiatrist opens himself or herself up to liability by disclosing confidential information, even if it is done to protect the patient, protect the public, or comply with a request from a court or governmental entity. Another common allegation of malpractice against psychiatrists is that the psychiatrist engaged in an inappropriate relationship or conduct with the patient. Where liability is contested, the case often devolves into a credibility contest between the psychiatrist and the patient. Where liability is admitted or proven, the issue becomes whether additional recovery is available from the psychiatrist’s employer based on a failure to supervise or act on knowledge that an inappropriate relationship was occurring. The availability of insurance coverage for any damages can also be an issue, as many policies contain exclusions for sexual misconduct. Litigating a psychiatric malpractice case involves a discovery process different from other types of medical malpractice. Unlike a medical diagnosis that is based on symptoms, pathology or imaging, the diagnosis of a psychiatric illness is more nuanced and, arguably, more subjective. Although the DSM attempts to set standards and parameters for diagnosis and treatment of various psychiatric conditions, not all of its criteria are evidence-based and categories of diagnosis are disputed among the medical community. All of this uncertainty and subjectivity means that the depositions of the parties and their experts are frequently much longer than in other kinds of medical malpractice cases. In addition to malpractice claims, psychiatrists can also be forced to defend licensing complaints and investigations by state medical boards. Licensing actions involve a process, burden of proof and penalties that are different from a malpractice action. It is important to make sure a defence attorney has experience defending a licensing action in addition to malpractice actions. Licensing actions involve a state MY LEGAL LIFE 21 Unlike a medical diagnosis that is based on symptoms, pathology or imaging, the diagnosis of a psychiatric illness is more nuanced and, arguably, more subjective.
of Health Professional Licensing within the Michigan Department of Licensing and Regulatory Affairs (LARA) refers an allegation to the health professional’s governing board. If the Board determines that an investigation is warranted, then LARA will send a letter stating that the professional is the subject of an investigation regarding a possible violation of the Public Health Code. This vague letter should prompt its recipient to retain an attorney, who can then contact the LARA investigator and schedule an inperson meeting to discuss the allegations at issue and what documentation or other evidence may be requested. Investigators are not neutral factfinders; they are charged with finding violations of the Public Health Code. The professional and his or her attorney may choose to produce medical records. The physician-patient privilege does not apply to a LARA investigation, nor do HIPAA protections apply to otherwise protected health information. In addition to the medical records and any other proffered evidence, the investigator may consult an expert to render a professional opinion regarding whether or not the professional violated the applicable standard of care or otherwise violated the Public Health Code. The investigator will produce a written report for use by the State Board of Medicine in determining whether or not the professional violated the Public Health Code. This process typically takes 4-6 months. If a favourable decision is rendered, the investigation is over. If the Board instead decides that a violation occurred, then LARA will file an administrative complaint, which must be answered within 30 days. If LARA believes that the professional poses a current threat to public health, safety or welfare, a summary suspension of the professional’s license may also be issued. The professional will then have an opportunity to meet with a representative of the Board to negotiate a settlement or to present evidence that the professional did comply with the Public Health Code. If the complaint is not dismissed or a settlement is not reached, an administrative law judge will hold a hearing on the 22 LAWYERMONTHLYOCTOBER 2022
I enjoyed reading and writing from an early age, but did not consider practising law until college. I had the opportunity to work at a regional law firm in Huntington, West Virginia while attending Marshall University to study History and Spanish. Law seemed like a natural fit for my interest in researching, developing and supporting arguments and ideas. Attending law school at Duke University, I was drawn towards appellate practice because of its emphasis on research and writing. I liked the process of weaving various cases and statutory interpretations into a cohesive argument in support of my position, and also preparing counterattacks to the best points of the opposing view. I enjoyed interacting with the judges at oral argument and responding to their questions about my position. It gave me a sense of performing that I had been missing from the days when I had time to do vocal and theatre performances. In 2011, my moot court team won the American Bar Association National Appellate Advocacy Competition. That gave me confidence that I could practise appellate law as a career. After law school, I returned home to Michigan to work at a regional defence firm in Metro Detroit. I had the good fortune of practising exclusively in appellate law from the beginning, and many of my cases were medical malpractice cases. After ten years of general civil defence work, I had the opportunity to take a position as head of the appellate department at TNMD, which is largest exclusive medical malpractice defence firm in Michigan. I come from a family of medical providers – my grandfather was chief of the urology department at Henry Ford Hospital in Detroit, my mother and brother are nurse anesthetists, and my sister is a physician assistant. I have always held medical professionals in high esteem, and being able to defend them gives me great personal satisfaction. I enjoy the complexity of medical malpractice law, both the medicine itself as well as the numerous statutes and lines of case law that specifically focus on medical malpractice. Working at a large medical malpractice defence firm keeps me constantly learning new areas of medicine. Sometimes, this knowledge helps me to be a more informed patient myself. As the appellate lead, I have the opportunity to work with all of the other attorneys in the firm on the difficult strategic issues and legal questions affecting their cases. It is very gratifying to help them win an important motion or to get a certain ruling overturned on appeal. I also appreciate the collegiality of the appellate bench and bar. Appellate lawyers spend their time trying to persuade judges, not fighting with one another over discovery disputes. We rarely see one another or our clients except in court, which makes for a somewhat lonely but very flexible practice. My favourite part of appellate practice might be the fact that there is almost always a winner and a loser once a case goes on appeal, as cases rarely settle. Win or lose, I am proud to defend Michigan’s healthcare providers in court so that they can focus on the tireless and important work they do caring for us all. complaint. The professional can present evidence and call witnesses and retained experts in his or her favour. The administrative law judge will provide a proposed written decision with findings of fact and conclusions of law to the Board, to which either party can file exceptions. The Board’s Disciplinary Subcommittee will then decide whether to accept the decision and impose sanctions if warranted. Sanctions against a license can include suspension, revocation, probation, reprimand or fines. The Board’s decision can be appealed to the Michigan Court of Appeals. If the decision becomes final, it is reported to the National Practitioner Data Bank and becomes part of the professional’s permanent licensing record. Discipline can also have serious consequences for the professional’s ability to practise in hospital systems, obtain malpractice insurance, and participate in public and private insurance systems. MY LEGAL LIFE 23 About Karen Beach Contact Karen E Beach, Principal Tanoury, Nauts, McKinney & Dwaihy, PLLC 38777 Six Mile Road, Suite 101, Livonia, MI 48152, USA Tel: +1 313-964-4500 | +1 313-465-8901 Fax: +1 734-469-4298 E: Karen.Beach@tnmglaw.com www.tnmglaw.com I am proud to defend Michigan’s healthcare providers in court so that they can focus on the tireless and important work they do caring for us all.
Lidia Casselm whole array of causes. However, over 90% of cases concern family issues. Generally, this is more likely due to their dependent nature within a family. Issues could arise from different life circumstances, such as choosing a nursing home, disputes over caregiving responsibilities or disagreements regarding future financial planning, but it can also concern more severe matters like elder neglect or abuse. This is where elder mediation overlaps with family law. They overlap mainly in purpose – to assure fairness and protection of an elderly person’s rights – but they differ in their approaches. While family law creates a clear and fast way of sorting disputes, it can often be rigid, neglectful of feelings and emotions, and thus imposing a third-party position that cannot be ignored without consequences; a fact that can ruin lives and relationships. By contrast, mediation creates a safer environment that will eventually lead to less ill will due To give our readers a basic foundation, what is meant by ‘elder mediation’? As per the Mediators’ Institute of Ireland, the institution of which I am a member, “Mediation is a process in which an independent, neutral mediator assists two or more disputing parties in resolving the discord in a collaborative, consensual manner.” An ‘elder’ is generally considered to be a person above the age of 60. Therefore, elder mediation is the process of mediation in which an elder could be either a part or a beneficiary. How elder mediation often overlap with family law? Elder mediation can unfold over a My Legal Life The Principles of Elder Mediation The common benefits of mediation over litigation, including reduced costs and a greater chance of an amicable outcome between parties, become even more pronounced when one or more of these parties are elderly. Mediator Lidia Casselman examines these benefits more closely in this article, with a focus on the legal disputes most commonly encountered by the elderly, and shares the philosophy that guides her own practice of elder mediation. 24 LAWYERMONTHLYOCTOBER 2022
man MY LEGAL LIFE 25 FEATUREOF THEMONTH
to its more personal and empowering approach. What are the more common health or legal issues experienced by the elderly that a mediator can assist with? There is no conflict in which mediation cannot play a significant part, whenever the parties involved are willing. Any conflict implies hard feelings, sentiments of mistrust, hate and, most of all, fear. The most common issues we see solved using mediation are conflicts within families regarding elder care, such as personal preferences, the type of medical approach that should be followed, mistreatment, abuse, and financial pressure related to nursing care. We also see conflicts between a nursing home and the family of a resident, or conflicts between staff of nursing homes and their elderly victims. Some nursing homes see the mediator as part of the ’family’ and mediation is a more advantageous and financially viable tool of sorting these internal and external disputes. Other conflicts refer to issues between an elderly person and friends or neighbours, former employers, health care facilities or other governmental institutions, just to name a few. In what way does mediation help to address these problems? The common denominator of all conflicts is a loss or the threat of a loss. This loss can have a material form, like a financial loss or the loss of material good: a car, a house, etc. In other cases, it may be an immaterial loss, such as loss of a right or of an advantage. Every loss is accompanied by a deep sense of injustice and fear. The elderly are a vulnerable category and, although most of them do not show it or verbalise it, they surely feel it. Mediation, as a process, offers a very human approach to both the person and the issue. We start by addressing the feelings and emotions of the client and, once the client feels understood and accepted, the process progresses towards the brainstorming part of the mediation that will more likely conclude in a practical solution that will deliberately benefit all parties involved. The mediation process gives the subject the confidence they need in order to find within them a desire and strength for a solution. What does the typical mediation process look like? What makes the mediation process unique is its complement of features: it is a voluntary process that is private, confidential, informal and flexible, with no The elderly are a vulnerable category and, although most of them do not show it or verbalise it, they surely feel it. 26 LAWYERMONTHLYOCTOBER 2022
time limits or rules on how the mediation should be conducted. Each mediation can and should be tailored to meet the parties’ needs. The mediator is simply a facilitator, assisting the parties in reaching an agreement or settlement, while remaining independent and impartial throughout the process. The typical mediation process involves five parts: a. Introductory statements, where the mediator presents the features of the mediation, the role of a mediator and the applicable frame; b. Joint or separate discussions with each party involved, depending on the nature of the conflict and the feelings involved; c. Assessing the problem —a crucial stage, as the mediator will be able to get to know each party’s position and expectations, but also wisely set the stage of the process and build the dialogue by keeping it positive and encouraging; d. Brainstorming, which in a practical sense means bringing to the table different ideas, solutions, scenarios or proposals about what a possible agreement would look like. The mediator will continue to arbitrate the process, constantly enabling the parties to consider the others’ positions. e. Writing the final detailed settlement or agreement that will have to be approved and signed by all parties involved. If a settlement cannot be reached, the mediator will assist all parties to decide whether to try again take the case to trial. During this process, are there any particular pitfalls that mediators and clients should be aware of? The most common pitfall of the mediation process lies in its own nature. Being a voluntary process, each party can refuse to negotiate. The whole process can MY LEGAL LIFE 27 Contact Lidia Casselman Legal Consultant/Mediator/Commissioner for Oaths Access Mediation Services LLC (USA) Ard Na Clug, Bellmount, Innishannon, Co. Cork, Ireland 300 Wembly Way, Murrells Inlet, South Carolina, USA Tel: +353 86-847-4598 (Ireland) | +1 843-485-2562 (USA) E: email@example.com www.lidiacasselman.com
Do you have any predictions for how this area of law will develop in the years to come? Elder mediation is a growing practice area. In most countries, mediation – including elder mediation – is now seen as a more human approach to solving conflicts, and which is clearly easing a general overload of litigation. Judges are recommending mediation at the beginning of the litigation process and solicitors are required by law to advise clients to consider mediation to resolve the dispute. While some US states do recommend mediation, other states are now mandating a form of alternative dispute resolution prior to any form of litigation (from my own experience, South Carolina requires this for the circuit and family courts). I expect this empowering approach to soon spread globally because of its incontestable benefits. Ideally, people will soon prefer mediation due to its successful human approach and will even recommend it. There is no better advertisement than a happy customer. end abruptly and suddenly at any given point during the lengthy and ongoing mediation operation if one party leaves or refuses to cooperate any further. This can generate frustration and a deep sense of abandonment that can worsen the conflict. Meanwhile, mediators need to be aware of their impartial role. Human nature tends to be generally subjective and a mediator might find themselves sympathising with one party to the detriment of the other. This is even more likely when one of the parties is an elder, as one tends to favour the more vulnerable side. The mediator must keep their objectiveness in check at all times and at all costs. How have you witnessed the practice of elder mediation changing during your time in the sector? My personal journey as a mediator started at the end of 2017. Although mediation had been a part of the general framework governing separations and divorces in Ireland since 1989, it was only in 2017 when mediation was given special recognition in Ireland’s civil justice system by the Mediation Act, enacted on 2 October 2017 and applied from 1 January 2018. This act states the obligation of being offered the possibility of using mediation as a resolution for a dispute, while also regulating its process and features. I consider myself lucky to be part of the first generation of mediators trained within this statute. Due to the high rate of success (somewhere between 75% and 90%) I could witness how mediation’s popularity increased and started being used in different areas, including elder mediation. Due to the vulnerable nature of the subject, the elderly need to be heard, understood and empowered to choose the outcome of the conflict they are part of. Mediation is the enabling process that does exactly that. Human nature tends to be generally subjective and a mediator might find themselves sympathising with one party to the detriment of the other. 28 LAWYERMONTHLYOCTOBER 2022