Archive for March, 2011

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The Aftermath of NGRI in Florida

Wednesday, March 30th, 2011

Most people are familiar with the phrase “not guilty by reason of insanity” (NGRI).  In the legal system, NGRI occurs when criminal defendants admit the criminal act, but claim they were so mentally disturbed at the time of the crime that they lacked the mental capacity necessary to commit a crime.  The legal standard for insanity varies from state to state.  (For the Florida standard, go here.)

 

Notable cases

Famous cases where defendants raised NGRI are:

John Hinckley, Jr. (attempted to assassinate President Ronald Reagan)—More info

Steven Burky (the celebrity stalker of Ben Affleck and Jennifer Garner)—More info

Andrea Yates (who drowned her five children in a bathtub)—More info

Daniel Gonzalez (serial killer)—More info

 

The Aftermath

While many people are familiar with the concept of NGRI, few understand what actually happens in an NGRI proceeding.  NGRI is an affirmative trial defense, meaning that it is a defense that the defendant must prove to the jury.  If a defendant successfully convinces a jury that he committed a criminal act while insane, the jury may find the defendant Not Guilty by Reason of Insanity.

In Florida, the statutory framework controlling NGRI is rather broad and imprecise.  Basically, it provides that the defendant has the burden of proving he had a mental deficiency, and that the deficiency caused the defendant not to appreciate his criminal actions or its consequences, or that his criminal acts were wrong.  Neither a legal standard to gauge mental deficiency nor factual criteria to evaluate the defendant’s understanding is specified by statute.

If a defendant successfully convinces a jury that his mental deficiency relieves him of culpability for a criminal act, it necessarily implies that, at the time of the offense, the mental deficiency made him a danger to himself or others because it led to that criminal act.  Thus, evidence adduced at trial tends to prove that, because of the illness, the defendant is manifestly dangerous to himself or others.

In practice, Florida law gives the presiding judge wide latitude to exercise discretion in disposing of an NGRI verdict.  Based upon judicial findings regarding whether a defendant has a mental deficiency and is a danger to himself or others, a judge may commit the defendant to a treatment facility, release him upon certain conditions, or discharge him to freedom and close the case.

The court maintains authority over the matter until the defendant is discharged to freedom or dies.  Pursuant to information periodically provided to the court, a judge may respond to changing circumstances by involuntarily committing the defendant, conditionally releasing the defendant, or discharging the case.

 

Florida References for NGRI

References to NGRI can be found in both statutes and rules.  Here are some links to Florida law:

Fla. Stat. 775.027

Fla. Stat. 916.15

Fla. Stat. 916.16

Fla. Stat. 916.17

Fla. R. Crim. Pro. 3.216-3.219

Compliance Now Newsletter

Tuesday, March 29th, 2011

To read our firm’s latest edition of Compliance Now, go here.  This issue focuses on judging the effectiveness of a health care compliance program.

PHYSICIAN AGREEMENTS

Thursday, March 24th, 2011

In the context of health care compliance, attorneys are often hired to assist with Physician Agreements.  Physician Agreements are basically employment contracts between an organization and the newly-employed physician.

Fundamentals of contract law, labor law, Stark law, anti-kickback law, and arbitration issues can arise out of a poorly drafted Physician Agreement.  Here are some common problem areas (though not an exhaustive list) that both the organization and the physician will want clearly set forth in the Physician Agreement:

  • Who are the parties?
  • What is the term of the contract? (Start date, termination date)
  • What are the physician’s job duties? (Schedule, job description)
  • What are the employer’s responsibilities?
  • How will the physician be compensated?
  • Benefits? (Time off, vacation)
  • Who pays for CME?
  • Who pays for Malpractice insurance and “tail coverage”?
  • Is there a Non-Compete, Non-Solicitation or Confidentiality Agreement?
  • Is outside employment permitted?
  • How can the Agreement be terminated?
  • Will the physician have continuing access to records?
  • Who controls the physician’s research and writing results?
  • Recruitment incentives (Moving allowances, etc.)
  • How will disputes be resolved, and who will pay the costs and attorney’s fees?
  • Miscellaneous boilerplate provisions

When dealing with Physician Agreements, newly-hired physicians should seek legal advice to be sure that a particular contract complies with the law and is in their best interests.

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Weekend Update–CPR class photos

Monday, March 21st, 2011

Our attorneys are happy to be back at work today after a long weekend full of parades, contests, and classes!  Here’s a few pictures from their weekend!

Autumn Matthews performing CPR on her patient.

To supplement their health law practice, both our attorneys attended a basic CPR class on Saturday, March 19, 2011.  During this class, they learned of the newest CPR techniques and participated in a “hands on” demonstration.  Scott and Autumn learned how to properly administer chest compressions and breaths for both adults and children.

Scott Matthews learning how to properly administer CPR.

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ATTORNEYS HAVE BUSY WEEKEND PLANS

Friday, March 18th, 2011

Ever wondered which of our attorneys could eat the most in the quickest amount of time?  If you have, then you’ll get your answer on Saturday!  Here’s how our attorneys will be spending their time this weekend:

Tonight (Friday), our attorneys will be participating in the Mutt Strutt Dog Parade in Bartow.  Be on Main St. around 6pm to see Scott and Autumn walking their two dogs, Zack and Enzo, in Bartow’s St. Patrick’s Day parade.

Saturday morning, Scott and Autumn will be attending a class called “Save a Life Saturday”.  This class will teach life-saving CPR basics and will be a great supplement for our health law practice!  For more information or on how to register, please go here.

Saturday afternoon, our attorneys will be participating in the Big Dad Eating Contest at 2pm at Shane’s Rib Shack at Lakeside Village in Lakeland.  This is both Scott and Autumn’s first eating competition.  They will be competing against four other individuals.  Contestants will have 3 minutes to eat 3 Big Dad sandwiches. The winner gets free Big Dad’s for a year.

Please come out and cheer wildly for our attorneys…or the dogs!  Have a great weekend everyone!

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White Collar Headlines

Tuesday, March 15th, 2011

For today’s post, I thought I’d link to a few white collar/fraud headlines of interest.

Houston-area Resident Sentenced to 41 months in Prison for Medicare Fraud Scheme Involving Claims of Hurricane Damage to Power Wheelchairs——DOJ Press Release

Utah Judge Awards $2 Million in Punitive Damages in Fraud Case Against West Jordan Man——The Republic

Former Taylor Bean President Pleads Guilty to Fraud Scheme——WSJ Daily Bankruptcy Review

BILL TRACKER ALERT: Florida House Memorial 577

Thursday, March 10th, 2011

Florida House Memorial 577 —“Relating to the Scope of Federal Power to Regulate Commerce”

By: Autumn B. Matthews, Esq.

In the midst of health care reform upheaval, courts and legal scholars across the nation have disagreed on the issue of the exact scope of federal power to regulate under the Commerce Clause.  Depending on your geographic location, a federal judge may have already issued an opinion in your district as to whether or not the health reform law passes constitutional muster.  Some courts have said yes, some courts have said no.  It is a foregone conclusion that this battle is going all the way up to the Supreme Court.  As I type this blog, attorneys are even litigating if the District Courts of Appeal can be skipped so the cases can proceed directly to the Supremes.

In the chaos of this litigious atmosphere where no one seems to agree on anything in the health law, enter the Florida House of Representatives.  They have the solution.  And it’s called HM 577.  For general information about the Memorial Bill, go here.  To read the current version of the bill, go here.

And please, note my sarcasm.

Background of HM 577

The purpose of this Memorial Bill is to urge Congress to honor the provisions of the Constitution of the United States that limit the scope and exercise of federal power to regulate commerce.

It was co-sponsored by Representatives Matthew Caldwell (Rep., Lee County) and Jeffrey Brandes (Rep., Pinellas County) on February 1, 2011.  Currently, the Memorial Bill is in the Federal Affairs Subcommittee.  It received its first reading March 8th, 2011.

Summary of HM 577

The Memorial Bill is two pages in length.  It quotes the Tenth Amendment.  It quotes the Ninth Amendment.  It quotes the Commerce Clause.  It then goes on to make three “sweeping” resolutions:

  1. The Florida legislature claims sovereignty over all powers not otherwise enumerated and granted to the federal government.
  2. All goods grown, manufactured, or made in Florida and all services performed in Florida, when such goods or services are sold, maintained, or retained in Florida, shall not be subject to the authority of Congress of the United States under its constitutional power to regulate commerce.
  3. Copies of this memorial be dispatched to the President of the United States, to the President of the United States Senate, to the Speaker of the United States House of Representatives, and to each member of the Florida delegation to the United States Congress.

Basically, HM 577 reminds the Congress to take the Constitution into account when drafting legislation.  Right…I’m sure Congress forgot about that.

What is really going on?  Why would the legislature find it necessary to draft HM 577?

Here’s my hunch: Judge Vinson in the Eleventh Circuit (the circuit to which Florida belongs) filed the Order declaring the health reform law unconstitutional on January 31, 2011.

Which means HM 577 was filed the very next day.  So although HM 577 never mentions the words “health care reform” nor cites any Court ruling, the sole reason it exists is because of the health care reform law.

HM 577 is nothing more than a legislative response to a court ruling. It’s basically the state legislature saying, “Take that” to the federal government.  It is unnecessary and offers no legal guidance as to the state of the health law in Florida.  I am sure the leaders in Washington who may receive a copy of this bill are losing sleep at night waiting to receive it.  It doesn’t change the applicability of the Commerce Clause to the state of Florida.  If it was THAT easy to get around the Commerce Clause, someone would have thought of it by now.  The Memorial serves absolutely no purpose, and is a complete waste of time for a legislature that is dealing with big issues (e.g., high-speed rail, education, state worker pensions, funding).

(For a historical discussion about the Commerce Clause, go here.)

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