Bicycle injuries can vary widely based on the nature of the accident, ranging from fractures to catastrophic injuries with significant life-changing consequences. To ensure one gets just compensation for damages sustained as a result of the negligence of others in these circumstances, they should seek the services of a Personal Injury attorney experienced in bicycle accident cases in order to navigate complex bicycle laws in the state of Florida.

Anyone who has suffered an injury on a bicycle because of another party’s negligence can file a claim.

Under Florida’s comparative negligence law, i.e., Fla. Statute §768.81, each person who is found to be at fault is assigned a percentage. This means an individual can still collect financial compensation for the percentage of fault attributed to the other person.

Under Fla. Statute §95.11, injured parties must file personal injury lawsuits within four years of the date of the injury. Wrongful death lawsuits involving pedestrian injuries must be filed within two years. If the accident involves a state, county, or government agency, the statute of limitations can be shorter than four years. All statutes are subject to change, and exceptions may exist depending on your specific case. In addition, it takes time to investigate and then file a lawsuit. Evidence starts to disappear within hours of the crash (tire marks, debris, video surveillance). It is important to get representation quickly. 

Bicycle injury claims can range from a few months to much longer. It depends on a number of factors.

Again, it is recommended to hire an attorney experienced in the type of case in which one is involved.

Bicycle accident injury cases are handled like most Personal Injury matters and that is on a contingency fee basis. This means clients do not pay the attorney anything unless and until a financial compensation is recovered.

As for Bicycle helmets, per statistics, they can reduce the risk of serious head injury by about 50%. Annually, helmets tend to prevent hundreds of bicyclist deaths. Wearing a helmet is the best way to protect oneself from potential injuries while biking in Florida. Bicycle riders over the age of 16, however, do not legally have to wear helmets in the state of Florida. Learning the municipal laws, codes or ordinanes in a particular city can help a rider remain on the right side of the law.

According to bikehike.org, most states, including Florida, do not have universal laws requiring all bicyclists to wear helmets. Instead, Florida has a law that only requires riders under the age of 16 to wear them. Cyclists who are 16 and older are free to ride without helmets, unless their cities passed specific laws stating otherwise.

Electric bicycles have grown more popular in recent years. To lawfully use an electric bicycle in the state of Florida, the rider must be older than 16 years of age. However, operators or riders do not need to wear helmets to operate electric bikes. It is also not necessary to wear a helmet while riding on a scooter or moped unless the rider is a minor under the age of 16. One can even operate a motorcycle without wearing a helmet as well in the state of Florida, if operator is over 21 years of age and has at least $10,000 in personal injury protection motorcycle insurance.

Since wearing a helmet while biking is not a legal requirement in Florida over the age of 16, it is uncommon for this to serve as a plausible defense in an injury claim. Florida Statute Section 316.2065(18) specifically states that the failure to wear a helmet, or the failure of a parent to make a child wear a helmet, may not serve as evidence of negligence or contributory negligence. Consequently, bicyclists have specific protections against this defense

The courts in Florida will not base a personal injury decision on whether the bicyclist was wearing a helmet. It may be different, however, if rider is in a state that does require helmets. If the bicyclist broke the law by not wearing a helmet, this could be a potential defense to an injury claim. The defense could argue that by breaking the law, the bicyclist placed him or herself in a position to suffer the injuries in question.

If a rider is over the age of 16 and not wearing a helmet during your bicycle accident, the defense cannot use this fact against them, even if they are pursuing damages for a head or brain injury. Since they did not break the law, they were not negligent in deciding to go helmetless. Florida is, however, a pure comparative negligence state. The defendant may try to argue the plaintiff’s-victim’s comparative fault for reasons other than not wearing a helmet to reduce the value of the claim.

Pedestrians and bicyclists are covered under Florida’s PIP insurance law if a motorist hits them. If the victim or a household family member have PIP insurance for a vehicle, said victim should be covered under that policy. If the victim does not own a vehicle, they will be covered by the PIP insurance of the driver who hit them.

If a family member is injured by a motor vehicle while walking or bicycling, they have several options to collect payment for the injuries sustained under Florida PIP law.

Florida requires that every registered driver in the state must carry at least $10,000 in personal injury protection, or PIP benefits. According to Florida Statute Section 627.736, insurance policies must pay PIP benefits for anyone, including bicyclists and pedestrians, hit by a motor vehicle as long as they are not an occupant of a self-propelled vehicle.

PIP covers medical expenses which result from an accident and also provides benefits for lost wages, death benefits, and disability. 80% of actual expenses for medical treatment, hospitalization, transport, and medical tests are covered up to $10,000 maximum, so long as treatment is received within 14 days of the accident. If treatment is not considered an Emergency Medical Condition (EMC), the limitation on coverage is only $2,500. An EMC is defined as any injury, which, if left untreated, would reasonably be expected to cause serious jeopardy to the person’s health, serious impairment of any bodily function, or serious dysfunction of a body part or organ.

Disability benefits consist of 60% of the injured party’s lost wages if they are unable to work (up to a limit of $10,000), including payment for someone to assist with daily activities such as yard work and household chores that the subject injured party cannot complete. Additionally, death benefits can be paid up to $5,000 to the next of kin if the injured party passes away.

Personal Injury Protection coverage is meant to cover relatively minor accidents, but if medical expenses and lost wages exceed $10,000, an injured victim may sue the at-fault driver for the amount of damages greater than the $10,000 PIP limit. Said injured party may also sue the at-fault driver for non-economic issues such as pain and suffering.

To discuss this area more specifically since many victims and their family find the Florida No-Fault Law as unfair, the following issues will be addressed. If hit by a car a victim is entitled to have their medical bills paid by their own auto insurance, even if the accident was not their fault. Their auto insurance applies, even though your own car was not involved. This medical bill coverage under their auto insurance is called “Personal Injury Protection” or “PIP” or “No Fault Benefits”. This coverage is “primary” for one’s medical bills, meaning auto insurance is the first insurer who is supposed to pay the said medical bills.

Many bicyclists ask if the foregoing is unfair. They also ask, “Why should MY insurance have to pay my medical bills, when I did nothing wrong?” They finally add, “Will my auto insurance cancel me or raise my rates?”   Florida car owners have paid money to their auto insurance carriers called “premiums” for this exact type of insurance coverage under their policy. In Florida, it is mandatory that all automobile insurance policies provide these “PIP” benefits. It must be understood that the automobile insurance carrier for the vehicle or driver causing the accident does not have to pay these medical bills at first considering the legal list of priorities regarding insurance coverage.

There is a redeeming feature to all this in that the victim’s or their household’sauto insurance cannot cancel or raise one’s rates merely because they were involved in an accident that was not their fault.

In Florida, medical bills from a bicycle crash (when in a collision with a car) will not be 100% covered. Auto insurance will generally pay 80% of all reasonable medical bills, unless the policyholder has purchased extraordinary (and not basic) coverage. The maximum payments for all medical bills for a single accident are $10,000. Once auto insurance has paid $10,000 in PIP benefits (with basic coverage), the benefits are “exhausted”.

After the foregoing, then the remaining bills should be submitted to one’s health insurance, if any. In the beginning after a bicycle accident, the victim’s auto insurance is “primary” insurance, and their health insurance is the “secondary” insurer. On a given bill, automobile insurance PIP benefits will pay 80% and then health insurance can pay the balance due on the bill. Once PIP insurance has reached its limit of benefits, then the health insurance becomes the primary insurer. The said victim can still seek compensation from the at-fault driver, vehicle owner, or their auto insurers for the medical expenses incurred as a result of the subject accident.

To ensure proper payment of medical bills-it is critically important that medical bills are submitted to the insurers as soon as possible. Some auto and health insurance companies decline to pay medical bills if they are not submitted in a timely manner. When one goes to the hospital or doctor, request they submit the medical bills to auto insurance, if applicable, and then to health insurance, if it exists, on every claim, from the start. Further, keep track of how medical bills are being submitted and being considered by the insurers. Many auto insurers and health insurers give their customers on-line access to the claims submitted. By going on-line, injured party can check to make sure the insurer received the bills and see how much was paid and why.

If the victim does not own a car and does not reside with a family member or relative who owns a motor vehicle with insurance, then they are still entitled to “PIP” or “No Fault” benefits under an auto insurance policy. The victim can then get these benefits to pay the medical bills from the owner of the at-fault car’s auto insurance. The victim is entitled to these PIP benefits whether the accident was their fault, the other driver’s fault, the fault of both, and/or no one’s fault. They are entitled to have 80% of each reasonable medical bills paid up to $10,000 maximum benefits.

Florida Courts have not agreed on whether the bicycle rider is entitled to PIP benefits if they swerve to avoid impact and then get injured without the opposing vehicle striking them. The Florida law on PIP benefit says all auto insurance policies must provide personal injury protection when the policy holder is struck by a motor vehicle and suffers injury. Certain Florida Courts have interpreted this law to include PIP coverage where the bicyclist crashed to evade being struck by the opposing vehicle. This is a fair result. It would be unfair for bicyclists to be covered who were hit by a car, when other bicyclists, who likely minimized their injuries by avoiding a collision, were not covered.

The foregoing is just a brief and general overview of the subject of bicycle accidents in Florida.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

According to the 2021 National Retail Security Survey, retailers in the state of Florida pointed out the growing list of threats to their companies. When questioned on what areas of threats have increased the most over the last five years, mall or store violence, cyber-related incidents, and organized retail crime were at the top of the list. Organized retail crime was at 64% for its potential risks to stores.

In response to the foregoing threat, last year, Gov. Ron DeSantis signed the new SB 1534 against retail crime in the state. The bill was signed and passed on June 17^th, 2022. Under the title “Retail Theft”, the subject bill 1534 stated that it prohibited certain retail theft at multiple locations within a specified timeframe and provided new and enhanced criminal penalties for individuals who commit organized retail crimes.

The foregoing law took aim at the rise of retail theft in this state. Florida Attorney General Ashley Moody stated that the measure was designated to crack down on what she called “organized retail crime.”

Regardless of such law, Organized Retail Crime (ORC) is generally on the rise in the United States, and it is impacting inflation, store employees, and customers alike. 

Consequently, what is retail crime and how does it impact inflation? What should an individual do if they are injured at a store, either directly or indirectly, due to organized retail crime?

Organized retail crime (ORC) refers to professional shoplifting or other theft happening in retail stores. Far beyond a teenager placing unpaid candy into their pocket, ORC often involves multiple people grabbing thousands of dollars’ worth of merchandise and walking out of the store with it, then selling the products online, on a street corner, from the back of a van, etc.

While retailers certainly do not care for the financial losses incurred, the more significant  problems are increasing brazenness and aggressiveness. In a recent survey, 86.2% of retailers said an ORC subject had verbally threatened an associate; 75.9% said an ORC subject had physically assaulted an associate, and 41% said an ORC subject had used a weapon to harm an associate.

If an individual has been injured due to an ORC, contact an experienced and compassionate retail crime victim rights lawyer. 

All “shrink”, i.e., the retail term for inventory losses from theft, fraud, and paperwork errors, is on the rise, increasing from 1.4% to 1.6% of sales on average from 2015 to 2020. However, the estimated portion of those losses coming from organized retail crime is also dramatically increasing from 0.045% to 0.07% in the same timeframe.

While “shrink” is a normal or routine part of the bottom line, the increase in organized retail crime is pressuring retailers to invest in new technology and additional security while at the same time making it even more difficult to hire and retain employees. When all these factors combine, increased product prices are a natural result.

Working retail was already one of the most dangerous occupations as far as nonfatal injuries even before the COVID-19 pandemic hit. An increased risk of being attacked during the commission of a retail crime is an additional factor in a very long list of reasons it is difficult for stores to retain employees.    

ORC affects customers in a number of ways:

• High employee turnover results in poorer customer service;
• Measures to prevent theft, like having products locked up, can make shopping disagreeable;
• High rates of retail crime can lead to increased prices being passed on to consumers; and
• Companies may spend too much time and money on loss prevention and become negligent in other ways that may lead to accidents and injuries.

A person may be able to get compensation for their injuries if they can prove the store was negligent and should have been able to prevent the attack which caused said injuries. For example, if an individual works for a store and were not properly trained on how to approach potential shoplifters, and thereafter a person was injured when a possible criminal shoved them out of their way so they could escape with stolen merchandise, the employer may be held liable for the subject injuries (beyond what worker’s compensation may cover).

Retail stores have a duty of care to protect every person who legitimately comes onto their premises, including: Customers, Employees, Delivery people, Contractors, Wholesalers and anyone conducting business with the store.

If the stores failed to take reasonable steps to keep one safe on the property and their negligence led to said victim being injured, they may be able to get compensation from the company to pay for their physical, financial, and emotional injuries.

If one gets injured as a result of an organized retail crime  whether the criminals hurt them directly or whether they were hurt elsewhere in the store while the staff was busy trying to prevent ORC, then said victim should take the following steps to increase their chances of receiving compensation for their injuries from the store.

If the injuries are serious, one should seek immediate medical attention. Even if the injuries seem minor, such as scrapes and bruises, going to see a doctor provides a paper trail to prove later on that said individual was injured at the store. Further, said injuries may also be worse than one initially suspects, therefore, it is best to get examined.

If one was attacked or another crime was committed, one should file a police incident report. Not only does this give law enforcement an opportunity to find the person or people who assaulted them, but it is yet another important part of the paper trail that may help a victim later on.

Take pictures or videos of the area around where the incident occurred to search for evidence that may show the company or store was negligent. Get the names and contact information of any witnesses who saw what happened. Also, keep any torn or bloody clothing (or other evidence of injuries), unless the police ask for it.

An experienced retail crime victim attorney will know whether the subject victim can pursue compensation for their injuries and can assist in obtaining a maximum recovery for the claim. Rather than accepting whatever money the store’s insurance company may try to initially offer, contact an experienced attorney first to discuss the case.

If a person living in or visiting Florida is injured during a retail crime, contact a crime victim rights lawyer for a consultation. Even if shopping malls, large retailers, or mom-and-pop shops are experiencing more retail crime, they still owe a duty of care to keep their patrons or customers safe on their property and may owe them compensation for any injuries sustained if the store neglected that duty.

The foregoing is just a brief and general overview of the subject of organized retail crime.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

As a follow up to the article posted in April 2021 on Florida medical records, we will discuss various issues, aspects, and their consequences.

A common question that clients ask when pursuing a medical malpractice case is, “Can medical records be altered to hide the evidence?” 

Though it seems that doctors and other medical providers accused of malpractice might simply change medical records to protect themselves, there are several reasons why doing so is not reasonable or practical.

Falsifying or altering a medical record is a crime punishable by a fine or even possible license restriction, suspension, or termination. Additionally, altering medical records can make it harder for doctors to prevail in medical malpractice cases. 

Juries do not trust liars, and a questionable change or amendment to a record may imply that something was being covered up. The consequences of discovering an act of altering a medical record are probably worse than the consequences of telling the truth.

Further, it is difficult to get away with falsifying medical records. Usually, in medical settings, documents are shared among a few doctors and nurses, not to mention a patient’s health insurance provider and testing facilities. 

Discrepancies can be spotted among different copies of a document as well as in a patient’s medical bills. With written records, forensic scientists can tell when a document has been changed by looking at inks and indentations in the paper. It is also easy to track changes in electronic documents.

Despite the risks, altered medical records still occur. At times, when a healthcare provider is discovered to have done such an act, difficult cases suddenly become much easier to win. Conversely, cases with much promise are occasionally lost because there is not an accurate record of what happened, preventing lawyers from being able to support their case with sufficient evidence.

Altering a medical record is a crime and can also be used against doctors in medical malpractice cases. However, it is not illegal for medical professionals to make honest updates to records, if they properly mark what they are doing and do not obscure information.

In order to make a correction, physicians should make a new note and include the current date and time. The note should be labeled, “Late Entry,” “Correction,” or “Addendum.” 

The physician or other medical provider should explain the relationship of the note to an earlier one, including the reason for the error, and the source of the new or added information. Records should always reflect who did what. Finally, they should draw a line through the incorrect entry. The old text, however, should still be legible.

If an omission in a medical record is noticed by a physician after a short amount of time and said physician can distinctly remember administering medication or other treatment, a late entry should be made. 

However, if a day or more has passed, it is unlikely that the physician can reliably remember exactly what happened. Filling in missing information after the fact may lead to a misrepresentation of events. As such, filling in omissions may also be an illegal act.

According to Florida Law, a healthcare provider who knowingly or willfully destroys, alters, or otherwise obscures a medical record or other information about a patient to conceal evidence is subject to the following:

For HOSPITAL LICENSING AND REGULATION

 395.302 Patient records; penalties for alteration.—

(1) Any person who fraudulently alters, defaces, or falsifies any medical record, or causes or procures any of these offenses to be committed, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2) A conviction under subsection (1) is also grounds for restriction, suspension, or termination of license privileges.

 For NURSING HOMES AND RELATED HEALTH CARE FACILITIES

400.1415 Patient records; penalties for alteration.—

(1) Any person who fraudulently alters, defaces, or falsifies any medical record or releases medical records for the purposes of solicitation or marketing the sale of goods or services absent a specific written release or authorization permitting utilization of patient information, or other nursing home record, or causes or procures any of these offenses to be committed, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

 (2) A conviction under subsection (1) is also grounds for restriction, suspension, or termination of license privileges.

A medical record is essentially a summary of one’s health history. The primary care physician has a medical record for his patient, but so does every other healthcare facility said patient has used, from specialists to hospitals.

A patient can authorize their medical records be sent to another healthcare provider for continuity of care. Otherwise, one’s medical records will not be consolidated. There has been an effort in recent years to simplify the sharing of medical records between providers through digitization. Electronic health records (EHRs) contain a summary of one’s health and treatment history and can be shared more easily.

However, there still is not a standard nationwide software or process for medical professionals to share information. This means that a patient may have to put in multiple requests if they want a complete copy of their medical record.

Medical records can include the following:

• Personal Information (name, SSN, etc.);
• Family Medical History (risk of high blood pressure, anxiety, etc.);
• Medical History (medical conditions, past illnesses/complaints, pregnancies, immunizations, recreational drug use, allergies, etc.);
• Referrals;
• Examination Results (physicals, x-rays, lab reports, scans, etc.);
• Medication and Treatment History (drugs used, the possibility of drug interaction, success/failure of past treatments, past surgeries, etc.);
• Medical Directives (patient’s wishes about their medical care if they become unresponsive);
• Autopsy Report/Death Certificate.

Although patients have the right to access a copy of their medical records, original documents belong to the healthcare or medical facility which created them. 

Doctor’s offices and hospitals are required to keep medical records on the premises in a secure location. They may share patient records electronically with the subject patient’s other providers if granted permission by said patient. This is not an automatic or instantaneous process, however, which is why a patient is often asked questions about their medical history when they go to a new doctor or facility.

Under the Health Insurance Portability and Accountability Act (HIPPA), patients have a right to receive a copy of their medical and billing records. Facilities do charge a fee for copying and mailing records. However, they cannot legally deny a patient a copy of their medical records because they have not paid their fee. It often takes multiple letters and calls to get the facility to send the records.

In a lawsuit, medical records are essential evidence. Insurance carrier or providers can review medical records and will request a copy if a person files a lawsuit. A patient’s personal representative can also collect their medical records, which is especially useful in cases of wrongful death. 

The government and law enforcement also have the right to access medical records in certain situations.

There exist in various other states verdicts and settlements involving lawsuits which represent examples of falsifying medical records.

One question that gets asked is can a patient sue a doctor for lying in the records? A patient may be able to sue a doctor for falsifying medical records, but the said patient needs actual harm to resulting therefrom to have a reasonable likelihood of a settlement or verdict. In all the out of state examples of falsifying medical records, there was underlying harm to the patient.

NOW, as far as violation of the privacy or confidentiality under the foregoing HIPAA law, it must be noted that there is no private cause of action in HIPAA, so it is not possible for a patient to sue for a HIPAA violation. Even if HIPAA Rules have clearly been violated by a healthcare provider, and harm has been sustained as a direct result, it is not possible for patients to seek damages, at least not for the violation of HIPAA Rules.

What the said patient can do is the following:

File a Complaint with OCR-To report HIPAA violations, a patient must file a complaint to the Office of Civil Rights. Note that said patient can file this complaint in writing by e-mail, mail, or through the OCR Complaint Portal. Requirements for filing a HIPAA Privacy Complaint include:

• File the complaint within 180 days of when a patient discovered that the act a patient is complaining about took place;
• Ensure to provide extensive details about the patient or the affected individual if done in a representative capacity;
• Name the covered entitled or third-party associate involved;
• Provide details of the complaint, describing the acts one believes violate the requirements of the HIPAA rules;
• Once a patient has submitted their HIPAA Privacy Complaint, the OCR will go ahead and investigate the covered entity.

File a complaint with the DOH-Aside from licensing all healthcare professionals practicing in the state, the Florida Department of Health (DOH) is also tasked with reviewing complaints filed against them. If a FIPA-covered entity is found in violation of patient confidentiality, it can be held liable under the data privacy laws. The Florida Information Protection Act of 2014 (FIPA) came into effect on July 1, 2014, expanding Florida’s existing data breach notification statute requirements for covered entities that acquire, use, store or maintain Floridian’s personal information.  

FIPA modified Florida’s existing data breach notification law and applies to commercial and government entities. FIPA applies to all covered entities. A covered entity is a sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other commercial entity or government entity that acquires, maintains, stores, or uses personal information.

More importantly, FIPA is an extraterritorial law, which means any company that acquires, uses, stores, or maintains the Personally Identifiable Information (PII) of Floridians must comply. This includes covered entities with no physical footprint in Florida. 

File a Report with a Third-Party Payer-Note that patients with Tricare, Medicare, VA, military, or Public Health Service can report or file their complaint to the Office of the Inspector General of that exact agency. However, note that one does not always have the luxury of time when it has to do with filing their complaint after they have discovered a HIPAA violation.

It is advisable the patient file a complaint immediately after discovering the violation. To get the best possible outcome, a patient is recommended to seek the expertise of a competent attorney experienced in this area.

Some common HIPAA violations in the state of Florida include:

Information disclosure: When employees of a covered entity divulge PHI to unauthorized individuals, their employer is believed to have violated HIPAA regulations.

Inadequate PHI access controls: Aside from being barred from disclosing PHI, employees of covered entities are also restricted from accessing patient files if they are not so permitted. Illegal access to patient files is considered a serious HIPAA violation.

Lack of a risk analysis policy: Covered entities are expected to conduct risk analysis regularly to note whether PHI is prone to attacks. Failure to do this is also considered a serious HIPAA violation.

Lack of a risk management policy: Once risks are identified, covered entities are expected to immediately implement a risk management process to manage those risks in a reasonable time- frame. Note that failure to implement a risk management plan is considered a HIPAA violation.

Lack of HIPAA-compliant agreements: Covered entities will also have to enter into HIPAA-compliant agreements with third-party agents, including vendors and business associates. Also, note that not doing this is considered a HIPAA violation.

Failure to PHI on Portable Devices: The inability to protect devices containing PHI, such as using strong passwords and encryption, is noted as a HIPAA violation. Downloading PHI to personal and unprotected devices is also noted as a gross violation in the State of Florida.

Exceeding the deadline for issuing breach notifications: In Florida, covered entities are expected to issue breach notifications within 30 days after finding out about a data breach. Defaulting is essentially considered a HIPAA violation.

Improper disposal of PHI: HIPAA rules mandate covered entities to securely destroy PHI that is no longer needed. Failure to do this is considered a direct HIPAA violation.

Limiting patients from accessing their PHI: Under HIPAA, patients are expected to be granted access to their medical records and get copies on request. Owing to that, denying patients this right is a violation of HIPPA.

Outlined above are some of the few ways to report HIPAA violations in the State of Florida. Although the OCR is the primary organization which receives complaints, a patient can leverage other ways of reporting if they do not feel comfortable going through this type of process.

The Department of Health and Human Services’ Office for Civil Rights – the main enforcer of HIPAA Rules – can issue civil penalties for HIPAA violations. OCR investigates complaints about potential HIPAA violations and investigates data breaches. When individuals are discovered to have violated HIPAA, civil penalties may be appropriate.

Also note that one can report to a supervisor at one’s employment, their company’s Privacy Officer, or the Compliance officer when they suspect there is a HIPAA violation in their organization. Once they receive the complaint, the organization is expected to investigate the violation internally and note whether the complaint meets the threshold for reporting under the breach notification rule.

If one works in healthcare they should have a good working knowledge of HIPAA rules, exercise diligence, and ensure that HIPAA Rules are always followed, but what happens if they violate HIPAA? What are the likely repercussions for accidentally or knowingly violating HIPAA Rules? What happens if HIPAA laws are violated will depend on the type of violation, its severity, the harm caused to others, and the extent to which the subject individual knew that HIPAA Rules were being violated.

If at the time of the violation one was unaware that they make a mistake, the violation was minor, and no harm has been caused, the violation may be dealt with internally. Verbal or written warnings may be issued and further training on HIPAA compliance would be appropriate.

For more serious violations, especially in cases where HIPAA Rules have been knowingly violated, termination is likely. The violation may be reported to licensing boards who can place restrictions on licenses. Suspension and loss of license is also possibility.

The Department of Health and Human Services’ Office for Civil Rights, the main enforcer of HIPAA Rules, can issue civil penalties for HIPAA violations. OCR investigates complaints about potential HIPAA violations and investigates data breaches. When individuals are discovered to have violated HIPAA, civil penalties may be appropriate.

There are four tiers of civil penalties based on the level of knowledge that HIPAA Rules were being violated:

Tier 1 applies to individuals who did not know HIPAA Rules were being violated or by exercising a reasonable level of diligence would not have about a violation of HIPAA. The minimum penalty is $100 per violation up to a maximum of $25,000 for repeat violations.

Tier 2 applies to reasonable cause, which has a minimum fine of $1,000 per violation, up to $100,000 for repeat violations.

Tier 3 apples to violations involving willful neglect of HIPAA Rules when the violation has been corrected within the required timeframe. The minimum fine is $10,000 per violation up to a maximum of $250,000 for repeat violations.

Tier 4 is reserved for willful neglect of HIPAA Rules with no attempt to correct the violation. The minimum penalty is $50,000 per violation up to a maximum of $1.5 million for repeat violations.

The maximum penalty, regardless of the tier, is $50,000 per violation with a cap of $1.5 million.

The Office for Civil Rights can refer violation cases to the Department of Justice when there have potentially been criminal violations of HIPAA Rules. Criminal penalties for HIPAA violations are rare, but they are possible when healthcare employees have knowingly violated HIPAA Rules.

The tiers for criminal penalties are:

Tier 1 – Negligence/Reasonable cause – A fine of up to $50,000 and up to one year in prison

Tier 2 – False pretenses – A fine of up to $100,000 and up to 5 years in prison

Tier 3 – Personal gain or malicious intent – A fine up to $250,000 and up to 10 years in prison.

Consequently, when a patient obtains a copy of their medical records, they should thoroughly review them. Occasionally, one might come across an error or learn that confidential information was improperly disclosed, the foregoing may be a general overview of what direction or avenues they may be able to take.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Thanksgiving began as an autumn harvest feast and has been celebrated for hundreds of years. The holiday gives the residents of the United States an opportunity to reunite with family and friends, enjoy a traditional meal, and express gratitude, although in recent years, it is also associated with parades, football, Black Friday shopping, and initiates the holiday season.

If one is curious about the time-honored Thanksgiving traditions or wants to navigate the holiday legally, the following are some of interesting history, laws and legislation surrounding the Thanksgiving holiday in the United States.

On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day. The Senate, however, amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays.

Throughout U.S. history, Thanksgiving has been held on various days.

In October1621, the Plymouth colonists and the Wampanoag tribe shared an autumn harvest feast that is acknowledged today as one of the first Thanksgiving celebrations in the colonies. For more than two centuries, days of thanksgiving were celebrated by individual colonies and states. Colonists in New England and Canada regularly observed “thanksgivings,” days of prayer for such blessings as safe journeys, military victories, or abundant harvests. Americans model their holiday on the 1621 harvest feast shared between English colonists and the Wampanoag. This feast lasted three days and was attended by 90 Wampanoag Native American people and 53 Pilgrims (survivors of the Mayflower). On December 11, 1621, Governor Edward Winslow of the Plymouth Colony wrote a letter in hopes of attracting more colonists. In it, he described a three-day feast shared by the Plymouth settlers and the local Wampanoag people.

There are only two surviving documents that reference the original Thanksgiving harvest meal. Curiously, turkey was NOT on the menu for the first Thanksgiving! They describe a feast of freshly killed deer, assorted wildfowl, a bounty of cod and bass, and flint, a native variety of corn harvested by the Native Americans, which was eaten as corn bread and porridge.

Alexander Hamilton once proclaimed: “No citizen of the U.S. shall refrain from turkey on Thanksgiving Day.” Hamilton’s proclamation became reality, and according to the National Turkey Federation, about 45 million to 46 million turkeys are consumed each Thanksgiving, since it is a bird indigenous and native to North America and thereby set the American table apart, for example, from the British table.

Jefferson signed a proclamation for a day of “Thanksgiving and Prayer,” to be held on December 9, 1779. At that time, the Virginia General Assembly was responsible for formulating state government policies, not the governor. This proclamation did not establish a permanent annual observance.

In 1789, President George Washington issued a proclamation designating November 26 of that year as a national day of thanksgiving to recognize the role of providence in creating the new United States and the new federal Constitution.

Thomas Jefferson refused to endorse the tradition when he declined to make a proclamation in 1801. For Jefferson, supporting the holiday meant supporting state-sponsored religion since Thanksgiving is rooted in Puritan religious traditions.

Later, President James Madison proclaimed two Thanksgivings in 1815, one in the spring and one in the fall.

President Abraham Lincoln started the modern practice of a national Thanksgiving holiday. Amidst a raging Civil War, President Abraham Lincoln issued a “Proclamation of Thanksgiving” on October 3, 1863, 74 years to the day after President George Washington issued his first presidential Thanksgiving proclamation. The foregoing began in 1846, by the editor of Godey’s Lady’s Book, Ms. Sarah Josepha Buell Hale who launched a letter-writing campaign to support her cause for a designated day for the Thanksgiving holiday. Finally on September 28, 1863, she wrote directly to President Lincoln, asking him to use his powers to create the holiday. Her 36-year quest was finally fulfilled. Hale was also a New England-born poet, editor, activist, and philanthropist best known for authoring the poem “Mary’s Lamb,” or “Mary Had a Little Lamb,” as it is known today.

On June 28, 1870, President Ulysses S. Grant signed into law the Holidays Act that made Thanksgiving a yearly appointed federal holiday in Washington D.C. On January 6, 1885, an act by Congress made Thanksgiving, and other federal holidays, a paid holiday for all federal workers throughout the United States.

In both 1939 and 1940, President Franklin D. Roosevelt proclaimed Thanksgiving on the third Thursday in November, to lengthen the shopping season for Depression-era retailers to help businesses still suffering from the lingering effects of the Great Depression.

Roosevelt’s proclamation proved controversial, with some states continuing to celebrate on the fourth Thursday of the month. In 1941, Congress put an end to “Franksgiving” by passing a joint resolution that officially established the date of Thanksgiving.

At the end of 1941, Roosevelt signed a bill officially making Thanksgiving Day the fourth Thursday of November, regardless of whether it is the last or the second-to-last Thursday of the month.

It is now a well-established tradition that the President is gifted and later pardons a turkey every Thanksgiving. There are conflicting stories about the origins of the turkey pardon because the tradition of presenting the President with a turkey dates back many decades.

In 1865, President Abraham Lincoln spared a turkey that his son took a liking to, but it was not until 100 years later that President John F. Kennedy spared the first Thanksgiving turkey. The first president to issue a formal pardon to the turkey was George H.W. Bush during a ceremony in the White House Rose Garden in 1989.

To detail the turkey pardon history-while the presidential turkey pardon has become a yearly tradition, it is a relatively new tradition. The first turkey spared by a president has been traced to Abraham Lincoln. According to an 1865 dispatch by White House reporter Noah Brooks, Lincoln’s son Tad asked his father to spare the turkey’s life. Tad had adopted the turkey as a pet. Although Lincoln spared this turkey’s life, the turkey was planned for Christmas dinner not Thanksgiving dinner.

Reports of turkeys sent to the White House as gifts at Thanksgiving can be traced back to the 1870’s. Horace Vose, a Rhode Island poultry dealer, began sending turkeys to the White House in the 1870’s until 1913. Vose’s death in 1914 brought about the opportunity for others to send turkeys to the president for Thanksgiving. Official presentations of live turkeys to the president began in 1947 with the National Turkey Federation presenting a live turkey to President Truman. Because of this media notoriety, President Truman is often credited with the first turkey pardon, but he did not pardon the turkey.

In 1963, President Kennedy spared a turkey’s life at the presentation event when he stated, “Let’s keep him going“.  In 1973, during the Nixon presidency, the turkey was sent to Oxen Hill Children’s Farm. First Lady Rosalynn Carter (wife of President Jimmy Carter) sent the 1978 turkey to Evans Farm Inn to live in a mini zoo. It became the norm for the turkeys to be sent to farms during the Reagan administration.

The pardoning became formalized and official in 1989, when President George H. W. Bush pardoned that year’s Thanksgiving turkey. “He’s granted a presidential pardon as of right now — and allow him to live out his days on a children’s farm not far from here.” Since 1989, each year, the U.S. President officially pardons a turkey from the Thanksgiving table.

Currently, Thanksgiving has become somewhat controversial. The holiday may be about being thankful in principle, but it is considered by many as an acknowledgment of the role of colonialism in North America and the displacement and oppression of the Native Americans. Indigenous Peoples in America recognize Thanksgiving as a day of mourning. It is a time to remember ancestral history as well as a day to acknowledge and protest the alleged racism and oppression which they claim they continue to experience to date.

As for the two-day holiday-the Friday after Thanksgiving is a state holiday in California, Delaware, Florida, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

The foregoing is just a brief and general legal and historical overview of Thanksgiving.                                                                                                                                  

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI & in Miami Lakes, Florida.