Big News (Fall 2017) for California Real Estate Licensees with Tarnished Records

Commencing January 1, 2018, the California Bureau of Real Estate (CalBRE) will allow disciplined licensees to petition the Commissioner to request the removal of license discipline information posted for public review on the CalBRE website. To be eligible for removal, the relevant license disciplinary action taken by CalBRE must have occurred at least 10 years prior to the petition for removal. There are guidelines, requirements, and limitations, of course. Fransen & Molinaro, LLP has been helping real estate professionals handle BRE issues for years, and stands ready to help with this new process. (Visit http://www.dre.ca.gov/files/pdf/reb/rebfall_17.pdf for more information). If you feel you meet the criteria for removal of discipline information, please don’t hesitate to contact us for more information.

Medical Malpractice:EMRs Can Be Your Friend or Foe in a Lawsuit

The electronic medical record (EMR) is touted as one of the best new additions to medical record keeping due to its time-saving abilities, its ease of transferring records and its tailor-made templates, which should make it all but impossible to fail to document an important step in patient care. And, yes, recording the detailed care of the patient can be your best friend in the event of a malpractice case. However, some of the very features that make the EMR so quick and easy to use make it potentially dangerous with a couple of pitfalls.

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– Paul

CONTACTING PAUL J. MOLINARO, M.D., J.D. WITH A POTENTIAL MEDICAL MALPRACTICE CASE

Q: How do I contact you, Paul J. Molinaro, M.D., J.D.?

Start by calling the law firm of Fransen & Molinaro, LLP at (951)338-9226 or (888)MDJDLAW. When our receptionist answers (nine times out of ten, it will be Lorri) tell her you would like to speak with Paul about a potential medical malpractice matter. If I am available, I will speak with you right then and there. If I am not available, leave your full name and telephone number with her, and I will call you back.

 

Q: How much do you charge to speak with me about a potential medical malpractice case?

Nothing. The initial consultation with me is free, though, I guess we can accept tips if offered without any duress.

Q: Is everything said to you confidential?

Even though you are not actually a client when we first speak, you are a “potential client” or a “PC” as we lawyers will call you behind your back. The communications between a PC and attorney are confidential. Thus, feel free to (and please do) tell me everything when we speak – even things that you feel will hurt your potential case. I need to be given accurate and truthful information.

 

Q: When I do speak with you on the telephone, what will you ask me?

I will ask you many things, but first I will ask for your full name and telephone number. I will be taking notes, so you will probably hear me clacking away on my computer keyboard as we speak. I will then ask you whether you are calling about yourself or someone else. If you are calling about yourself, I will ask your age. If you are calling about someone else, I will ask for that other person’s full name and age.

 

Q: What else will you ask me?

I will then ask you what happened and let you start giving your story. Of course, there is a pretty good chance that within 30 seconds of you speaking I will start asking questions. I will not be cutting you off to be discourteous. I just have a habit of directing such initial conversations so that we get to the pertinent parts as soon as possible. Directing the conversation is how physicians get quick and accurate histories from patients and how lawyers get quick and accurate fact patterns from PCs. As I ask questions and you answer, we will have a conversation which should provide me with enough information to determine whether you have a viable medical malpractice matter.

 

Q: What information should I know and have ready before I call you so that I can answer your questions?

One of the things I will always try to ascertain is the date that the potential medical malpractice occurred. For example, if we are discussing a surgery, I will want to know the exact date of the surgery. If we are discussing a missed diagnosis, I will want to know the exact date you discovered that the diagnosis was missed. I will also want to know the full names of the physicians or other health care providers that you believe harmed you and the full names of the hospitals or medical facilities where the incident in question occurred. If you had tests or diagnostic imaging studies done, I will ask the date they were done and what the results were. If you were given medications, I will ask for the names and dosages of the medications and the name of the prescriber. If you had a surgery, I will ask you exactly what type of surgery you had done. Thus, if you have your medical records, it would be a good idea to have them in front of you when you call me. If you do not have them, you can still call and do your best to answer my questions. If the records are needed, you can always get them later.

 

Q: Will you tell me if I have a good case in our initial phone call?

Due to California’s Medical Injury Compensation Reform Act of 1975 (“MICRA”), and many other factors, my firm ends up telling about 99% of the medical malpractice PCs that call me to try other law firms (and to do so before the statute of limitations runs, if it has not run already). Very rarely (meaning almost never), in an initial phone consultation, will I tell a person that he or she has a bad case or tell them to forget it and move with his or her life. Every lawyer has an opinion about what makes a case “good.” Of course, I think quite highly of my opinion, but not so highly as to think I am always correct. In fact, in 2011, I traded medical malpractice cases with another lawyer. We each thought our cases had little chance of success but that the other lawyer’s case was “solid.” After trading cases, we each settled and both of our clients were pleased with the results. I was wrong on one case but right on another! So, if I tell you that my firm will not represent you, and I recommend that you contact other lawyers, you should absolutely do so. The State Bar of California and your local county bar association are great referral sources.

Now, if, during our conversation, I do feel that you have a good case, I will invite you to come to my office for a face to face meeting with me. We will then meet and discuss the next step to take. The next step is having me review your medical records. If you are not able to come to my office due to illness, disability, or distance (I take cases throughout the State of California), I will ask you to send me copies (never originals or your only copies) of your medical records for my review. I do not charge PCs for my review of their medical records.

 

Q: After you have reviewed my medical records, then what?

After I have reviewed your medical records, I will tell you whether I think there was medical negligence (malpractice) committed. If I do not believe that any medical negligence was committed, I will tell you that my firm will not represent you, and I will recommend that you contact other lawyers before your statute of limitations expires. The State Bar of California and your local county bar association are great referral sources.

If I do believe that medical negligence was committed, I will talk to you about retaining a medical expert to review your medical records and provide an expert opinion as to whether medical negligence was committed. While I am a medical expert, of course I will never act as such in a case in which I am the plaintiff’s lawyer. Because medical experts charge for their initial reviews, we will talk about the amount charged and how much of that fee you will be expected to pay. Expert review fees vary depending on the specialty of the physician performing the review, the amount of medical records requiring review, and the complexity of the potential case.

 

Q: After the medical expert provides an initial opinion what happens?

Well, that depends on the opinion. If our medical expert says there was no medical negligence committed, I will tell you so. I will then recommend that you contact other lawyers before your statute of limitations expires. The State Bar of California and your local county bar association are great referral sources. However, I will caution you that you should inform those other lawyers that a medical expert has already reviewed your case and said that no negligence was committed. I will also caution you not to file a case yourself as doing so could put you in the position of having filed a frivolous case. If you file a frivolous case, you could end up paying a lot of money to the defendants you sued frivolously.

If the medical expert says there was medical negligence committed and tells me that he or she can’t wait to start working on the case, I will tell you so. My office will then, with our agreement, become your attorney and begin the process of filing suit. My office will then front the costs of the lawsuit from that point forward – the exact details of the terms will be set forth in a written retainer agreement.

If the medical expert says there was probably medical negligence but that he could just as easily be a defense witness, I will then recommend that you contact other lawyers before your statute of limitations expires. The State Bar of California and your local county bar association are great referral sources. My office only takes cases where the medical expert not only provides an opinion that medical malpractice was committed but is eager to work on the case.

 

Q: Anything else to add?

Yes. Don’t hesitate to call me if you think you have a case. However, don’t start the call by telling me what a great case you have. Don’t tell me how I should be glad you called me instead of the other attorneys who would jump at the chance to take this case. Just tell me what happened. I’m pretty sure I will figure out whether it’s a case my firm will handle. If you do not trust me to determine whether you have a good case, call someone you do trust. I do not base my opinion of potential cases on whether you feel the doctor was a jerk. I do not base my opinion of potential cases on whether you feel the hospital staff didn’t really care about you. I do not base my opinion of potential cases on whether your neighbor who was a medic back in the day said you have a case. I do not base my cases on a situation where you almost got hurt by a doctor. I base my opinion on what actually happened and is shown to have happened in the medical records and whether you suffered actual and substantial harm as a result of what happened.

 

Q: Your last answer kind of put me off. You sound a bit arrogant.

That’s not a question. It’s a comment.

 

Q: Okay, wise guy. Are you arrogant? Will you be rude to me when I call?

It depends on who you ask, and I will try not to be. I really enjoy speaking with PCs. I really enjoy taking cases. I really enjoy handling medical malpractice cases. However, when my firm passes on a case, and the PC wants to know why, I provide my opinion. Sometimes that opinion is not what the PC expected or wanted to hear. Sometimes I help a PC see things with an objective eye – focusing on the difference between bad bedside manners and medical negligence or the difference between what is substantial harm (enough to bring a lawsuits) and minor harm. Sometimes, after formally reviewing the medical records, I can help provide closure by explaining what happened.

 

Q: Got it. Thanks.

You’re welcome. I look forward to speaking with you.

CALIFORNIA AND DEBT SETTLEMENT SCAMS

Along with the recession, depression, slump, downturn, economic reset, crash, or whatever euphemism used to describe the massive consumer debts now facing many Californians, came squads of scammers looking to make quick bucks by promising to solve personal financial problems. These scam artists push their “services” through radio, television, mail, internet, and cold calls. When faced with overwhelming debts, thought processes get paralyzed, and desperation overrides good judgment and common sense. Conmen take full advantage of this phenomenon by pretending to be compassionate professionals who can solve enormous financial problems for just a few easy and affordable payments. Continue reading

SHOULD YOU HAVE YOUR NEW LOAN DOCUMENTS REVIEWED BY AN ATTORNEY?

If you’ve even been half paying attention to the media coverage on mortgage litigation lately, you have probably heard about getting a loan document “audit.” This is where you pay thousands of dollars to some self-titled called forensic loan auditor to prepare a nonsensical report that identifies de minimis technical violations in your stack of loan documents from a loan you did five years ago – a report that you are told to take to an attorney and sue your lender into submission to get the loan modification that you deserve. You know that one? Well, that’s not what this article addresses. What this article does address is the question of whether it’s worth having a competent knowledgeable and qualified attorney explain the complex language of your loan documents to you before you sign on the line which is dotted. Five years ago people did not even blink at the fact that their loan officer got huge amounts of money for selling them a predatory loan.  Continue reading

POST FORECLOSURE LIABILITY – WILL LENDERS GO AFTER BORROWERS?

California’s anti-deficiency laws were written to prevent: (1) multiplicity of actions; (2) overvaluation of the security; (3) worsening an economic recession by holding debtors personally liable after losing their homes; and (4) allowing creditors to low-ball bids at the foreclosure sale to acquire property below market value and then go after the borrower for money.  Continue reading

LOAN MODIFICATION & MASS JOINDER LAWSUIT SCAMS

You don’t need to read this article to learn that, over the last three years, many California homeowners have fallen victim to scams involving loan modification scams, foreclosure rescue, and “mass joinder” plaintiff lawsuits. The desperation created by our country’s economic collapse has given predators the opportunity to con homeowners out of their hard-earned money with false hopes of saving their family home.  Continue reading

SHORT SALE VERSUS FORECLOSURE

This article discusses California foreclosure laws in very general terms and omits many specific nuances which may make such laws inapplicable to you. California foreclosure laws are complex and every-changing. Thus, only an extremely large textbook would even begin to explain their intricacies. The following is presented just to provide you with a very basic foreclosure and short sale education.  Continue reading

TAKE THE LATEST DRE WARNING WITH A GRAIN OF SALT!

Just When the Tide Was Turning Against the Banks… the California Department of Real Estate Comes to Their Rescue!

If you found this essay during your Internet travels or other research, you likely have a basic understanding of, and an interest in, the mortgage meltdown, the collapse of the real estate market, the foreclosure crisis, the billions of dollars in bailout money given directly to banks and indirectly to their CEOs, the tribulations suffered by families who begged for loan modifications, the farce of giving bogus trial loan modifications to borrowers with one hundred and fifty percent (or more ) loan to value ratios, and the reasonless denials for permanent modification after successful completion of a trial modification plan foisted upon borrowers who were ignorant enough to believe that their mortgage lenders would give them a permanent loan modification if they just passed the three-month test known as a trial loan modification.  Continue reading

THOSE NAUGHTY DEBT COLLECTORS

Debt collectors are heavily regulated by federal and California state laws. The California Fair Debt Collection Practices Act (California Civil Code Section 1788.30, also known as the Rosenthal Act) mirrors the federal Fair Debt Collection Practices Act (15 U.S.C.A. Section 1692k). Such strict governance is required to control a field where threats and offensive language are known to be very effective tactics to extract payments from debtors.  Continue reading