Archive for the ‘Lawyers’ Category

Service of Noses Out of Joint: Are Online Reviews by Patients on the Line?

Monday, September 25th, 2017

 

Photo: youtube.com

Plastic surgeon Dr. Bahman Guyoron’s patient wasn’t pleased with the job he did on her nose to “alleviate nasal congestion,” according to Wall Street Journal reporter Joe Palazzolo, and while at it, he was to cosmetically tweak her beak. So she shared her thoughts about the outcome on a range of online review sites from RealSelf, Yelp to RateMDs.com, and Dr. Guyoron sued her.

The patient said she now must sleep with a breathing aid because her nostril collapses and that her nose is wider than it was before surgery. A second surgery by the same doctor didn’t fix the problems.

Photo: earth.com

Her lawyer said “her reviews were ‘substantially true or were her opinion,’” and that they didn’t harm the doctor’s reputation.

Palazzolo explained that the doctor would have to prove they were false and that he was damaged. “If the jury deemed him a public figure, he would have to show that [the patient] knew the information was false or showed reckless disregard for the truth.”

In email correspondence with the newspaper the patient wrote that her purpose was to inform others and that she didn’t expect to face financial ruin as a result. According to lawyers who handle such cases, wrote Palazzolo, “a negative comment can diminish a doctor’s business in short order.” And because doctors’ hands are tied due to privacy laws to discuss details of procedures, to get patients to erase such reviews some opt to sue.

Photo: petwave.com

“‘Given how few defamation cases go to trial—and cases involving doctors are even more rare—any trial would be an important signpost for future litigation,’ said Sara Kropf, a lawyer in Washington, D.C., who provides legal advice to doctors regarding patient reviews.” This trial is scheduled for February.

Photo: catster.com

At first Dr. Guyoron wanted the patient to remove the reviews and pay him $700,000, which she said she didn’t have. He now wants $1.8 million.

Knowing the risk to your wallet, would you think many times before posting online a negative review about any doctor? Doctors aren’t infallible: they make mistakes as we all do. Should review sites investigate/vet patient complaints before posting them? What are other effective ways to warn other patients about a doctor you’ve found faulty?

Photo: haririlaw.com

Service of Words That Should be Changed or that Need No Embellishment

Tuesday, July 5th, 2016

Forbidden word

Pick Another Word

The people who selected key words in the following examples didn’t think of their impact on others.

  • Words have powerIn this first instance, the name of a clinic was selected from the point of view of health professionals. It didn’t have patients in mind. A friend, I’ll call her Nora, received a call from out of the blue from the “Survivorship Center.” At first she thought it was a scam and that the person on the line was asking for funds. She’d been going for checkups to the prestigious Dana-Farber Cancer Institute. During the call she learned that the nurse practitioner she’d seen for years was leaving the Institute and that she was now assigned to the Survivorship Clinic. Nora told me: “I don’t like being categorized as a ‘survivor,’ and I don’t want to be a card-carrying member of such a group. I’m not ashamed of having had breast cancer, but that I had it shouldn’t be part of my identity.” She was infuriated when she received a letter in the mail with the clinic’s name on it. She hasn’t blasted the news of her previous illness and resented that the postal worker saw the name of the clinic. She felt it was an invasion of her privacy. In a second call to this clinic Nora told the person she spoke with that she thought that the name was dreadful—even tacky. Her response was that Nora was free to go elsewhere.
  • Then there was a word I’ve referenced before: Relocatable. That’s what the Air Force called a certain type of housing back in the day. The word focused on how the structure might be easily moved with no regard to how it sounded to people asked to live in it. It had no appeal to those assigned to the punishing North Dakota climate known for minus 60 degree temperatures and ferocious winter winds. The word implied flimsy and evoked images of belongings flying in the air should a Wizard of Oz-strong cyclone hit. Many of the relocatables remained empty in spite of a base housing shortage.Redundancy

Redundant: You Are or You Aren’t

 

  • I sat up straight when I heard a supporter describe a political candidate as “very, very honest.” There are some words that need no embellishment. Honest is one of them.
  • Queen Anne-style armchair

    Queen Anne-style armchair

    With furniture, if a piece imitates an original, the word “style” clarifies what it is, as in “Victorian-style chest,” or “Queen Anne- style chair.” But a doctor, artist, PR person or bus driver is or isn’t.

  • In this context, early one morning last week Len Berman told his listeners about a UK-based company that is now set up to work in NYC to fight parking tickets. It bills itself as “the world’s first robot lawyer.” As the WOR-Radio co-host of “Len Berman and Todd Schnitt in the Morning” read copy about this service he hesitated after saying “A real lawyer” and repeated, “real lawyer?” then continued. I, too, would have paused. Is there an unreal lawyer?
  • Len Berman

    Len Berman

    Do certain words that name a service, organization or product rub you the wrong way or create a negative image? Do you think that let-it-all-hang-out TV programs, where people share the most intimate information about themselves, impacted the choice of the Survivorship Clinic’s name?

“The lady doth protest too much, methinks,” said  Gertrude, Hamlet’s mother, which I thought when I heard “very” matched with “honest.” Other examples? What about the reference to a “real lawyer?”

Claire Bloom as Gertrude

Claire Bloom as Gertrude

Service of a Famous Name: 21st Century Fundraising & Avery Fisher

Monday, November 17th, 2014

Avery Fisher

Avery Fisher

I’m terrible at remembering names of people and places although those I’ve heard for eons–like Avery Fisher Hall [photo right, below]–fall off my tongue. When I read about how Lincoln Center was planning to attract the mega funds it feels it needs to update the hall my keyboard beckoned.

avery fisher hallThe Broadway World news desk wrote: “In a milestone philanthropic agreement that will help ensure the future of one of the world’s iconic performing arts spaces, the children of the late Avery Fisher – Nancy Fisher, Charles Avery Fisher and Barbara Fisher Snow – today joined with the leadership of Lincoln Center for the Performing Arts to announce that they have entered into an agreement to enable the renaming of Avery Fisher Hall.”

Danika Fears wrote in the New York Post: “After threatening to sue, Avery Fisher’s heirs agreed to let the performing-arts organization drop his name in exchange for $4.5 million more than the original $10.5 million the Fisher Electronics founder donated back in 1973.”

Some colorful example of inflation, no?

fundraise 2Fears continued: “Now Lincoln Center can tempt another well-to-do donor willing to sink serious money into a planned $500 million overhaul in exchange for their name being emblazoned on the building.”

I wish someone with that kind of money would give it, ask the Fisher children to return the $15 million to Lincoln Center and leave the name as-is.

I have issues with the concept that to attract big bucks an institution must offer the naming option, though this is beside the point and a distraction to the current situation.

I wasn’t tickled with Avery’s children for accepting money in this regard. Plus I’m surprised that the Fisher lawyers didn’t make it clear, when the original donation was made, how long the hall would sport Avery’s name and/or under what circumstances it could be erased. This move doesn’t seem like such a great precedent for attracting the next big donor: “Give us multi-millions and we’ll chip off your name when we need another injection of cash.” And what about the loss of branding and cost of new stationery, new domain name and so on?

I like the idea of donating money in the name of someone else–a deceased relative, a good friend. I’ve done this myself.

How do you feel about Lincoln Center’s fundraising techniques? If you had the money, would you name an institution after yourself or, in the example of a performance space, the name of a worthy industry celebrity or maybe someone who isn’t famous like your wonderful Uncle Joe?

fundraise 1

Service of Experts

Thursday, June 28th, 2012

terriseligman-hg1

Terri Seligman, Partner, Frankfurt Kurnit Klein & Selz

For marketers and investors, keeping up with social media is reminiscent of staying on top of breakfast orders at a busy truck stop: Organized mayhem. Lawyers in the industry are faced with constantly changing precedents, waiting day-to-day for judicial decisions that could send a client’s project back to the drawing boards even if it’s timed to amplify an imminent product or service launch.

The web and worlds of Facebook and Twitter may seem enormous, anonymous and therefore safe for loosey-goosey interpretations of the law. Wrong. These highways are stomping grounds of the Federal Trade Commission (FTC], state Attorneys General, the Food and Drug Administration and other regulatory agencies and self-regulatory agencies on the lookout for false advertising and product claims.

With mega high jinks missed by some regulatory agencies, such as the Securities and Exchange Commission, [remember Bernie Madoff?], I am amazed how thoroughly the FTC and other agencies patrol and scour the blogosphere, Facebook, Twitter, Pinterest and other social media venues.

terriseligman1I learned more about this recently when New York Women in Communications asked an expert, Terri Seligman, [photos above and right] to share an overview of social media and the law. Seligman is a partner in the advertising, marketing and public relations group of the New York City law firm Frankfurt Kurnit Klein & Selz.

Disclosure is the key for staying on the right side of the law in this Wild West. The questions: how much and how often, about what and when?

terriseligmanwindows-005smallSeligman told us about a fashion retailer who invited bloggers to an “exclusive blogger preview” of spring fashions. They left with bags filled with new products and gift cards worth from $50 to $500. PR execs and marketers have produced such events to generate publicity for eons. So why did the FTC investigate the company?

Seligman explained that some of the bloggers wrote about the fashions but didn’t indicate in their copy that they’d been given the items they reviewed or bought them with gift cards. This placed what the law calls a “material connection” between the fashion chain and the bloggers, a relationship which must be disclosed.

terriseligmanwindows-001smallBut the government closed the investigation without bringing a formal action against the retailer. The FTC was satisfied that the retailer had implemented appropriate procedures for these programs, including having a formal social media policy and posting a wall poster in the event space asking the bloggers to make clear in their posts where they got the products they reviewed. Seligman suggested that to avoid complications in similar instances, a company should take additional measures to reiterate the admonition so that bloggers make their relationship clear. Hearing her, I would suggest that a client of mine note this request in follow-up emails and in press materials prepared for bloggers.

Further, it’s a company’s job to keep its eye on what “its” bloggers write and to ask for appropriate adjustments in copy as necessary.

How and when should a blogger disclose a material connection? Early and often, according to Seligman. The FTC expects the relationship be front and center on even the shortest communications such as 140 character tweets. Seligman suggests the writer use typical hashtag disclosures such as “#paid” or “#spon” on Twitter and to repeat the connection on every Facebook and blog post.

Holly, a friend

Holly, a friend

What does the FTC consider an endorsement that a blogger must disclose? Seligman cited the FTC’s example of a blogger who wrote about a dog food that improved her dog’s fur. If she received and reviewed the free dog food as part of a network marketing program, the shiny fur claim is an endorsement. It’s not an endorsement if the blogger bought the food or got it with a coupon as part of a loyalty program.

There’s far more to learn such as how much monitoring of blogs is a company with a social media program expected to do and what should a company ask bloggers to agree to? Seligman can tell you, and if you’re lucky, you can catch up with her when she speaks again–she addresses organizations all over the country. Meanwhile you can keep up on her law firm’s ad/marketing law alerts at www.fkks.com.

You probably hire a CPA for taxes, a photographer/videographer to cover events and maybe you’ll add social media lawyer for appropriate campaigns. It’s no time for crossed fingers, guesses or guidance from a generalist when your media strategy involves bloggers to review and promote products, sponsored endorsements, contests and sweepstakes run through twitter and the like. What other experts can’t you live without?

 morebikelane-007

Service of Courtroom Dogs

Thursday, August 18th, 2011

rosie-the-dog

Whether or not someone is proved guilty, or the verdict sticks, frequently depends on which lawyer can find the most legal loopholes, make the most objections, discover tiny glitches in procedure to win appeals or toss around enough distracting, confusing drama so as to flummox the jury into opting for reasonable doubt.

I thought of this when I read about the dog that helped a 15 year old testify in a rape case against her father who was convicted this June in Poughkeepsie. William Glaberson wrote in The New York Times, “Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.” [That’s Rosie in the photo at the top and bottom of this post.]

The defense is planning an appeal that questions the fairness of allowing in a courtroom a trained therapy dog like Rosie. Rosie’s specialty is to comfort people under stress. Courts in Arizona, Hawaii, Idaho and Indiana allow such solace for children and “other vulnerable witnesses,” wrote Glaberson.

Isn’t Rosie’s work, while not literally the same as a seeing-eye dog’s, the same idea? seeing-eyedog2

“Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.”

Glaberson continued, “In written arguments, the defense lawyers claimed it was ‘prosecutorial misconduct’ for the Dutchess County assistant district attorney handling the rape case, Kristine Hawlk, to arrange for Rosie to be taken into the courtroom. Cute as the dog was, the defense said, Rosie’s presence ‘infected the trial with such unfairness’ that it constituted a violation of their client’s constitutional rights.”

juryOne of the public defenders noted that every time the child stroked the dog “it sent an unconscious message to the jury that she was under stress because she was telling the truth.” The father impregnated his daughter which DNA would confirm. I can’t imagine what the dog did to influence the outcome of this case other than give a youngster the strength to participate in a procedure that would be horrifying for anyone.

In courtrooms, judges advise and admonish jurors about all sorts of things and could easily note the purpose of a dog’s presence and tell the jury not to deduce anything about the testimony other than that there is a dog to provide comfort to the witness.

If you were a juror and saw a dog reassuring a vulnerable witness, would you read anything into it? Should trained dogs be allowed in a courtroom for this purpose?

rosie-in-court

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