30 October 2012

"Ready" is for the Other Guy...Until You Find You Aren't

Being prepared for a weather or seismic event cannot hurt. However, not being prepared can hurt and may impact others. Think outside the box here. A quiz follows.

I started to write this blog entry before Hurricane Sandy made its way up the East Coast, but my electricity went out. I do not have a UPS for my modem and router. You see, no one is ever completely prepared. Unfortunately time and money are key components to preparedness. But even with the best planning and preparation, there are many, many people who were and are affected horribly by this storm. My sincere sympathy and empathy to those who are suffering.

This piece is for those who are, thank G-d, safe and secure, but nevertheless did not think seriously about storm preparation. Maybe they will be unnecessary victims in the next weather or seismic event if they don't learn from this event.

Consider the world village - or even better, your own neighborhood. Let's say you don't think you need to be ready for a natural weather or seismic event because, you reason, the media is grossly exaggerating the conditions. You've never had a problem, you can just go to a hotel, your parents, kids, ex-spouse, etc. But, in the dark of night, you are startled awake by a loud "CRAAACK".  You reach for the nightstand lamp, but no power and no luck. 

You stub your toe on the exercise bike/clothes rack near the bedroom door. Groping your way on darkened stairs and shuffling into the kitchen, you fumble under the sink and find the flashlight. It weakly flickers "on" after a couple of palm-whacks. You don't curse your misfortune, because you know the batteries were left from a block party  a couple of years ago and the flashlight is one of those old, cheap-o plastic ones that your kid bought for $7.99 at his summer camp store a long time ago.

The slapping of rain and rustling leaves in the wind seem louder than past storms, almost like there is no wall between you and the downpour. Then you feel spray of water and the warm, moist air on your face. As you peer out the shaking kitchen window into a dark, suburban landscape, you make out the huge shade tree in your front yard - now a fallen gargantuan silhouette splintered through the attached garage where your car is parked. You open the garage passage door, torqued slightly and you see the separated wall from the house framing. As you peer at the dimly lit wreck through the pitch, branches, leaves and tempest; the flashlight predictably dims and dies.

So, there you are, no light, no car, rain pouring into your garage and house. Do you ask a neighbor for a couple of batteries? Call someone to come get you? Land-line phones are out, your cell phone is on the car seat, soaked.

Could you have left the area; packed a bag and gone somewhere? What if the power is out for days or weeks? Do you have a plan to deal with the emergent nature of this scenario? How will you contact your family, work, home, insurance providers, credit card companies, mortgage and other creditors, banks, etc. If you have a Plan "B", how will you get there and what resources will you have at your disposal? Do you have a "portable office" with back-up data, password keys, important numbers, etc. Cash, food (1,200 to 2,000 calories per day, water (1 gallon per day), meds, toiletries, cleaning supplies, clothes, shoes, etc.

If you don't have enough of the answers, please visit American Red Cross: Prepare an Emergency Plan No, there is no quiz. Just do it. Good luck, and thank you for taking care of business and being more self-sufficient. Help others who cannot prepare as you now have, send a GIFT TO THE AMERICAN RED CROSS*. American Red Cross
"Whether the weather be fair, nor whether the weather be not; whether the weather be cold, or whether the weather be hot; we'll weather the weather whatever the weather, whether we like it or not!" An olde Red Cross Aquatic & Small Craft School ditty.
*"The American National Red Cross is registered as a 501(c)(3) non-profit organization. Contributions to the American National Red Cross are tax-deductible to the extent permitted by law. The Red Cross' tax identification number is 53-196605."

06 October 2012

Shot to the foot? Support Candidates who Support Your Best Interest!

Paht the First (I). Shot to the foot?
During the state senate campaign and highlighted in the recent debate, several colleagues noted that Senator Scott Brown (R-MA) refers to his challenger, Elizabeth Warren (D) as "Professor Warren."
Quoting several colleagues from a listserv:

Brown makes it a point/
To call Warren, "Professor,"/
Like it's an insult.

That's an old tactic.
I remember in 1990, Bill Weld always called Silber "Doctor."
He also called Silber "Dr. Know-it-all."
It may have worked, since Weld won.

Clearly in 2012 Brown's "Professor" honorific is not out of respect for Warren's position at Harvard University Law School (notwithstanding insistence to the contrary). Rather, it is an attempt to paint her as part of (an imaginary) academic elite, thereby distancing her from the voter base.

Elitism in academia? It is curious that the 1% income group aren't considered "elite" by Scott Brown and his GOP / Tea Party admirers. While they simultaneously rail for better academic achievement in our schools, they hypocritically snub Warren's superior academic achievements with several pale arguments.

Of this republican gaff and others, I believe the most stark is the financial irony at play in this election:
Most of us are in the middle- to low-income brackets.The "1%-ers" in the highest income bracket have their businesses funnel tons of dough $ to republican / conservative causes and PACS. Folks, this translates to: less taxes for them (big businesses and the wealthy corporate officers and directors) and more taxes for us (small solo/independent business owners and wage earners).

We are the people that Elizabeth Warren will represent zealously. I believe that most Massachusetts voters supporting the Republican incumbent are ironically in the same middle- to low-income group as we folks who openly support Warren. So, I cannot fathom middle and low-income Massachusetts republicans and  Tea Party loyalists who, in their collective shot-to-the-foot thinking support the republican incumbent and his anti-education achievement snub.

Paht the Second (II.) Satire never shot anybody, so relax.
On a more satirical note+, I attempt to explain the "anti-education achievement" snub through social science research. It appears from my sources that the anti-education "perfesser" snub especially appeals to voters in a specific demographic, who consider it as an emotional truth.

The following analogy is considered "true" by an overwhelming number of voters in this demographic as reported to me by a very reputable source close to a campaign, but whom I cannot name, as s/he is not authorized to speak on such matters, but knows someone who can:

"Snobbery is to higher education as smaht is to radio talk shows." 

So, what about this so-called demographic? According to those that know, the "I-have-a-shotgun-in-my-pickup-truck-rear-window-rack-or-I-wish-I-did" ("Rear Window") demographic perceives the referenced analogy as an emotional truth based upon conclusions of social research. The Rear Window demographic group also finds personal beliefs affirmed through media outlets and reality TV, much like advertising reinforces post-purchase satisfaction.

Why? Because this group finds a consistency with a belief structure that either: (1) accepts anecdotal opinions as absolute truth (i.e. reality show reality) or, (2) merges emotional opinion and rational fact as equal  (unless it is their best interest to think otherwise - this is the "radio talk show reality").

Snubbery is snobbery? In either case, this Rear Window demographic will use the anti-education achievement snub for self-serving, hypocritical and disingenuous objectives. Simply put, it is far cooler among Rear Windowers to sound ignorant and pan intellect rather than embrace it. I note from the confidential report I received that this phenom only occurs in Massachusetts. It would appear that our colleagues, family and friends in NH, CT, RI and NY are completely rational and always make the correct socio-political assumptions.

That proffered, my source also provided me with the following poll sample and results in support of the "Rear Window" snub premise. Purportedly, 100% of those polled identified themselves as "persons" and also, an overwhelming majority were included as part of the "Rear Window" demographic because they selected at least one of the responses below.

One respondent "Person" provided 489,928,399 responses and footnoted that it would have been 489,928,400 but for one natural person having opted-out. Therefore, this poll is 100% accurate with only a marginal margin of error, so there is no need to ask.

Please complete the following phrase:
I most want a senator who :
A) "...is a delightful couversationalist and I most hope will join me for a libation."
B) "...also has a couple of Honey Boo Boos at home";
C) "...checks the maid's work by bouncing quarters off the bed";
D) "...uses the family's $45,000 pickup like a monster truck on Dot Ave.";
E) "...believes that 'Knowledge is Good'." * 

A) 0%
B) 28.3%
C) 2%
D) 18%
E) 43% 

Conclusion: Totalitarian and fascist regimes eliminated free thought, creativity and intellect from government and society throughout history. Consider on the extreme what Stalin, Mao, Ho Chi Minh and Castro did to the artists and academics in their countries. Let's be rational and consistent when supporting or criticizing the other guy and not resort to cheap shots, demonizing and stereotypes.

Notes and disclaimers: 
+ This satirical analysis and fake poll does not intend to reference any political office incumbent or candidate. It is a fake poll report indicating the imaginary perceptions of  potentially real persons, so politicians cannot be considered here legitimately. Information was provided to this blog by a reputable third-party and it is reported as true before someone else does. Why should CNN and Fox get all the glory? Should you find that the statistical responses above somehow actually correlate to actual data, you are clearly in error.

*Citing the Faber College statue/motto from the film, "National Lampoon's Animal House"

COMMUNITY HEROES: 11th Annual American Red Cross of Northeast Massachusetts Community Heroes Nominations & Breakfast, Danvers, MA (TH March 21, 2013)

The 11th Annual Community Heroes Breakfast of The American Red Cross of Northeast Massachusetts is March 21, 2013 in Danvers, MA. This year, the venue will be at the fabulous DoubleTree by Hilton Boston North Shore (formerly The Ferncroft).

There are six categories of "Community Hero" for your consideration:

  • Enduring Hero - A person who has made a difference in the community by engaging in many different activities over a long period of time.
  • Community Hero - An individual, couple or family "Good Samaritan" involved with an event, project or on-going effort that directly benefits the community.
  • Youth Hero - A student (elementary, middle, high school or college) who demonstrates leadership qualities or is involved with an event, project or on-going effort that directly benefits the community.
  • Education Hero - an exemplary educator (elementary, middle, high school or college) who is highly qualified, deeply committed to their vocation and is dedicated to improving educational standards both for students and fellow educators.
  • Healthcare Hero - A physician, nurse, home care worker or other healthcare provider who has delivered outstanding services.
  • First Responder Hero - A Firefighter, Police Officer, EMT or other first responder who has performed an act beyond the call of duty.

Nominations are due by January 4, 2013American Red Cross of Northeast Massachusetts:
85 Lowell Street, Peabody, MA 01960
T: (978)-922-2224 F: (978) 922-0325
email: kimberly.ohare@redcross.org

·         Special award presentation
·         Full page inside front cover ad on program book
·         Company logo on printed material related to the event
·         Event Underwriter recognition in media and online coverage
·         Reserved VIP table of eight at Community Heroes Award Breakfast
·         Recognition in Heroes program book
·         Underwriter signage at event
·         Recognition in American Red Cross of Northeast Massachusetts social media platforms

·         Sponsor of the Enduring Hero Award
·         Full page back cover ad on program book
·         Company logo on printed pieces related to the event
·         Presenting sponsor recognition in media and online coverage
·         Reserved VIP table of eight at Community Heroes Award Breakfast
·         Recognition in Heroes program book
·         Recognition in American Red Cross of Northeast Massachusetts social media platforms
·         Award Presenter
·         Full page ad in program book
·         Award sponsor recognition in media and online coverage
·         Reserved table of eight at Community Heroes Award Breakfast
·         Recognition in Heroes program book
·         Recognition in American Red Cross of Northeast Massachusetts social media platforms 
·         One quarter (1/4) page ad in program book
·         Reserved table of eight at Community Heroes Award Breakfast
·         Recognition in Heroes program book
·         Recognition in American Red Cross of Northeast Massachusetts social media platforms 
      Full page Ad                                $400
      One-half (1/2) page Ad              $300
      One-quarter (1/4) page Ad        $200

For information, please contact the Red Cross office at 978-922-2224

23 June 2012

American Red Cross of Northeast MA 15th Annual Golf Classic 9/10/2012

The American Red Cross of Northeast Massachusetts is running it's 15th Annual Golf Classic at Turner Hill in Ipswich, MA. All proceeds from this event support Red Cross programs and services. Save the date, Monday, Sept. 10, 2012 11:30 AM with a 1 PM Tee Time. Call the Red Cross office at (978) 922-2224 to secure a foursome or to inquire about sponsorship activities.

19 February 2012

Liability Shield Laws - The Consequences of Mixed Intentions," published 19 Feb. 2012

Jonathan C. Goldfield, EMARI Legal Advisor
Attorney at Law (Massachusetts)
Twitter @JCGAtty
Jon is an alpine patroller at SkiBradford.

Law Note: Shield Law Variations
Published in: the EMARI Newsletter February 4,2012  at page 21

Introduction. There are unsettled variations of Good Samaritan Acts -- also called “liability shield laws." Despite national and local efforts to standardize volunteer and governmental protection through federal and state legislation, the emerging legal gray area appears due to an unplanned intersection of the traditional liability shield law and a hybrid class of business-oriented immunity statutes for non-professional rescuers. A third tier of shield laws emerged after the Emergency Medical Services Systems Act passed in 1973 when Congress committed funds to create regional EMS systems. Specialized shield laws were enacted over time to protect EMS and other rescue workers.

To frame the current issue, it is a fair observation that technology often develops faster than our social and legal systems. Consider e-mail. We eventually learned that it is better to sleep on a hot “Reply all” e-mail rather than instantly flame a colleague (well, usually). Likewise, the Good Samaritan Laws have a history and function of protecting volunteers. The Good Samaritan was the accidental rescuer who had no duty to act, but nonetheless reacted to an emergent situation on a moral imperative. Courts are now reading the liability shield laws together with other shield statutes passed to save lives and promote the use of new technologies, AED’s for example. Unfortunately, there are inherent conflicts among those two sets of laws.

 Level of protection. Civil liability shield laws vary in degree of protection because each may have a combination of elements, including special exemptions or requirements uniquely perceived by the constituencies in each state. As a general framework, review several typical elements: Emergency (medical) care is provided, in good faith, for which there is no compensation, and for which there is the absence of gross negligence, willful misconduct (intentional harm), or wanton (reckless) misconduct. (See, OEC 5th Ed., pp. 15-17 for further explanation.[1] http://www.bradybooks.com/store/product.aspx?isbn=0135074800)

Legislative Intent.  Congress and state legislatures may include several types of legal tools in a shield law to protect rescuers. The law may have clauses that stop a lawsuit from being filed in the first place by eliminating the basis for the suit (the “cause of action”) as a matter of law, or creating an “affirmative defense” that gives the rescuer a legal basis to argue why the lawsuit should be dismissed based on a retroactive view of the facts as applied to that rescuer. The typical Good Samaritan Law is a retroactive affirmative defense. Other legislative mechanisms include allowing classes of rescuers to have limited governmental immunity and capping damages.

Congress and some forward-thinking states have enacted laws that seek to avoid the chilling effect that the concern for potential litigation and damage awards can have on rescuers. A 2011 study, Emergency Response: Civil Liability of Volunteer Health Professionals by the Congressional Research Service gives a history and status of the “patchwork” of volunteer liability shield and related laws across the country.[2] Response: Civil Liability of Volunteer Health Professionals

Analysis. What are some examples of the inconsistencies that exist regarding a non-Emergency Medical Services (EMS) worker’s legal duty to apply an AED? What protection do ski patrollers have?

1. Massachusetts.
Massachusetts has several liability shield statutes. The waters get murky when the non-EMS rescuer has legal protections built into a law defining the operation of a business, such as those governing the provision of AED’s in gyms and health clubs; both Massachusetts and Rhode Island (comprising our EMARI Region) have such AED statutes.

Discussion: In September 2011, a Massachusetts, a trial court considered two statute sections that go to the root of volunteer rescuer protection versus professional rescuer shield statutes:  Mass. Gen. Laws, ch. 93, § 86 [3] "Actions for damages or other relief; actions involving use or non-use of defibrillator." conditionally bars causes of action against health clubs and its employees for AED use or non-use in health clubs, and Mass. Gen. Laws, ch. 112, § 12V [4] "Exemption of certain individuals rendering emergency cardiopulmonary resuscitation from civil liability" is the Massachusetts volunteer Good Samaritan Law.

The health club/AED scenario is a now somewhat infamous due to the number of suits filed across the country, and the issue turns on whether the trained and certified employee had a duty of care to use an AED in addition to CPR. In the Massachusetts suit, Strong v. Noel Management Corp. [5],the club’s trained AED agent started immediate treatment of a racquetball player who suffered a heart attack. The employee ordered others to call 9-1-1 and watch for arrival of the ambulance, he administered CPR, but did not employ an available AED. The patient died six days later.

The trial court concluded that under the case facts and the statutes presented,

“there is no duty imposed upon non-emergency medical care ('EMS') third party interveners to utilize an AED. While it may be most prudent to have such devices readily available and to have non EMS personnel trained in how to use such devices, the law does not affix liability upon such persons for not using the same.”

The court finds its basis for dismissal in the “No Duty” clauses of the two statute sections. It does not grapple with the logic in another section of the health club/AED law requiring AED equipment and trained personnel in one section, and no duty to use the AED in another: Ch. 93 §78A: “A health club shall have on the premises at least 1 AED… and shall have in attendance during staffed business hours at least 1 employee or authorized volunteer as an AED provider…”[6] "Health clubs to have AED and AED provider on premises"  We will see what happens when a similar clause is addressed in two New York cases below.

The Massachusetts trial judge’s explanation of 'non emergency medical care’ from the volunteer Good Samaritan law[7] id. fn 4. raises issues relevant to ski patrollers. As patrollers, we are not generally EMS personnel [8] "EMS Personnel; good faith performance of duties; limitation on personal liability". The volunteer Good Samaritan law applies to an individual whose “usual and regular duties do not include the provision of emergency medical care,” where conversely, a ski patrol member’s usual and regular duties may.

Enter Massachusetts patroller shield statute – Mass. General Laws, ch. 231, § 85I,[9] "Emergency care, etc. of injured persons by members of ski patrols; exemption from civil liability" which specifically provides a civil liability defense for National Ski Patrol System (NSP) registered patrollers acting in good faith. Because ski patrollers may be compensated, and emergency medical care is considered part of a patroller’s “usual and regular” job duties, the gross negligence and other related liability clauses present in volunteer shield laws are absent. Short answer: The Massachusetts Good Samaritan Law doesn’t really help us, but the patroller shield statute does provide a specific, affirmative defense. The legislature could make it stronger by barring certain causes of action without condition.

Example #2: Contrast the Massachusetts health club case with two different New York State Appellate Court cases. The facts are similar, but the decisions are not. In December 2011, a ruling held that a health club employee had an obligation to use an AED, and could be held liable for a patron’s death. The Court agreed that New York State General Business Law § 627-a [10] "New York General Business - Article 30 - § 627-A Automated External Defibrillator Requirements" referenced in the case applied. That law requires that AED’s and trained personnel be on-site, but it is silent whether agents or employees must use them. The Court decided that it was "illogical to conclude that no such duty exists."

Consider the Massachusetts Strong case referenced above, where a similar business law requires trained staff and equipment on-premises, but not the equipment’s use.

Because the New York Good Samaritan Laws do not exempt “emergency health care providers” i.e., trained AED operators in health clubs from “their own ordinary negligence, gross negligence, or intentional misconduct”, there was no shield from liability. (Miglino v. Bally Total Fitness of Greater New York, 2011 NY Slip Op 09603, New York Appellate Division, Second Department. Dec. 27, 2011. [11] NY Case Law: Miglino v. Bally).

Yet, one year prior in another region of New York, a different Appellate Division Court dismissed another suit where the AED was not accessed. This decision ruled that the employee's actions did not rise to the level of gross negligence, and rejected the General Business Law argument obligating the club to use the AED. Thus, the gym and employee were shielded by New York’s Good Samaritan statutes (NY State Public Health Law §§ 3000-a [12] 2010 New York Code PBH - Public Health Article 30 - (3000 - 3032) EMERGENCY MEDICAL SERVICES 3000-A - Emergency medical treatment. and 3000-b [13] 2010 New York Code PBH - Public Health Article 30 - (3000 - 3032) EMERGENCY MEDICAL SERVICES 3000-B - Automated external defibrillators: Public access providers.). In other words, there was no common-law duty to use the AED. The deceased “assumed the inherent risk of a heart attack that attends intense exercise.” (DiGiulio v. Gran Inc. d/b/a New York Health & Racquet Club, 74 AD3d 450, 453 New York Appellate Division, First Department. August 25, 2010.), and on appeal, the New York Court of Appeals agreed. (DiGiulio v Gran, Inc., 17 NY3d 765, 767 (Decided June 14, 2011).

Discussion. What shield statutes apply in your state?
Rhode Island’s Good Samaritan law [14] RI: "Good Samaritan – Immunity from liability." conditionally protects volunteers who render emergency assistance, and its CPR and AED “immunity from liability” law conditionally covers persons functioning in an official capacity or as a private volunteer [15] RI: "Administering cardiopulmonary resuscitation or automated external defibrillation – Immunity from liability.", but the business law covering health clubs conditionally bars causes of action. [16] RI: "Defibrillators." Consider reviewing the laws for each state in which you may patrol, as you can see the clauses are subtle and may have important implications for professional and volunteer patrollers.
 * Disclaimer. Standards of care and duties to act are guided by local statutes, regulations, policies, and protocols combined with standards provided through your official training. This article offers opinions of the writer, but it is not legal advice nor does it represent the opinion of EMARI, Eastern Division or the National Ski Patrol. Attorney Goldfield is licensed to practice law in Massachusetts; citations to laws in other jurisdictions are for purposes of comparison, background and discussion.
[1] Outdoor Emergency Care 5th Edition, National Ski Patrol System, Inc., 
Warren D. Bowman, Edward C. McNamara, David H. Johe, and Deborah A. Endley. Prentice Hall, ©2011.

[2]“Emergency Response: Civil Liability of Volunteer Health Professionals”, Vivian S. Chu, Legislative Attorney, Congressional Research Service, www.crs.gov R40176 Jan.19, 2011 http://www.fas.org/sgp/crs/misc/R40176.pdf
[5]  Strong v. Noel Management Corporation, Commonwealth of Massachusetts, Salem Superior Court, Essex County, Docket No. ESCV2010-00534, decided September 30, 2011.