legal considerations for the naturopath’s practice © philip s. griffin, griffin law group 2008...

LEGAL CONSIDERATIONS

FOR THE NATUROPATH’S PRACTICE

©Philip S. Griffin,

Griffin Law Group 2008

FOR THE NATUROPATH’S PRACTICE

©Philip S. Griffin,

Griffin Law Group 2008

Disclaimer:This presentation is intended to provide general legal information.  Since each legal matter arises out of a unique set of  facts and circumstances, the information contained herein should not be regarded as specific legal advice as to any individual or entity.

LEGAL ISSUES IN THE NATUROPATH’S PRACTICE:• PROFESIONAL LIABILITY (MALPRACTICE)

• CHOICE OF ENTITY

• PRODUCTS LIABILITY

• COMPLIANCE WITH EMPLOYMENT LAWS

• INTELLECTUAL PROPERTY PROTECTION

• HIPPA

• PREMISES LIABILITY

• INSURANCE

PROFESSIONAL LIABILITY(MALPRACTICE)

PROFESSIONAL MALPRACTICE CASES ARE NEGLIGENCE CASES AGAINST PROFESSIONALS.

WHAT IS NEGLIGENCE?

NEGLIGENCE

UNDER THE COMMON LAW, EACH PERSON OWES EVERY OTHER PERSON THE DUTY OF REASONABLE CARE.

WHAT IS REASONABLE CARE?

REASONABLE CARE?

“REASONABLE CARE” IS MEASURED

AGAINST THE CONDUCT OF THE

FICTIOUS “REASONABLE PERSON.”

A REASONABLE PERSON

• This character, a legal fiction, is upstanding, alert, and intellectually capable. He/She doesn’t take unnecessary risks and looks both ways before pulling out into traffic.

The Naturopath’s Standard of Care

• Measured by the Reasonable Naturopath Standard.

The Reasonable Naturopath

• The jury determines professional negligence.

• The test: Did defendant Naturopath use “the degree of professional care, skill and prudence which an ordinary careful, skilled and prudent [naturopath] in general practice in the community of Albany, Oregon would have used under the same or similar circumstances.”

Sutton v. Cook, 254 Or. 116 (1969)

“If a patient seeks to be treated by a naturopath, and such practitioner follows the methods usually employed by a naturopath, such practitioner is not negligent simply because a regular licensed physician of another school would have treated the patient for the particular disease by some other method”

Hilgedorf v. Bertschinger, 132 Or. 641 (1930)

• Caveat: If practitioners step out of the practice of their school, and attempt to treat a patient in the manner practiced by another school, they will be judged by the practices of the other school.

Creasey v. Hogan, 212 Or 154 (1981)

OTHER TORTS INVOLVING THE MEDICAL

PROFESSIONAL

• BATTERY: ARISING FROM LACK OF INFORMED CONSENT.

WHAT IS INFORMED CONSENT?

• PATIENT MUST BE INFORMED:1. Generally regarding the procedure or treatment;2. Any alternative procedures or methods of

treatment; and3. Risks, if any, to the treatment or procedure.4. Provide further detail to the patient upon

request.ORS 677.097

Sexual Battery

• Sexual Relationships With Patients Invites Liability.

• Mismanagement of Transference Phenomena (Professional Negligence).

Vicarious Liability

• Liability for negligence of your employees who are operating in the scope and course of their employment.

CHOICE OF BUSINESS ENTITY

• Sole Proprietorship• Partnership• C Corporation• S Corporation• Limited Liability Company • Professional Corporation• Limited Liability Partnership

Premises Liability

“Business Invitee”: a patient, a delivery person, a repairman, etc.

Liability Arises If:

1. Owner knows or should know of unreasonable risk to invitee;

2. Expects or should expect invitee will fail to protect self;

3. Owner fails to exercise reasonable care to protect invitee.

Duties Toward Business Invitees:1. To Protect from Unreasonably

Dangerous Conditions;

2. To Protect from Foreign Substances on the Premises

3. To Protect from Acts of Third Parties

Employment LawEmployer Concerns:

1.) “At will” employee or

contract?

2.) Wrongful Termination?

Employment Law

3.) Wage and Hour Claims?

ORS Chap. 652* payment of all wageswithin 5 days of quitting.

* 30 day wage penalty, $1000 penalty, attorney fees

Products Liability

Products LiabilityProducts LiabilityWhat happens if your product fails and What happens if your product fails and

injures someone?injures someone?

ExplodesExplodesPoisonsPoisonsCutsCutsElectrocutesElectrocutesBurnsBurns

Who is liable for injuries caused by products?

Manufacturers, distributors, suppliers, retailers and others who make products available to the public are responsible for the injuries those products cause.

Goals of Product Liability Law:

> Forces producers to make safer products.

> Passes the risk of loss to the producer and not the consumer.

> Liability for injuries caused by a product if the product is found to be “dangerously defective.”

> “Dangerously defective” means the product has an “unreasonable risk of harm.”

When Does Liability Arise?

Three types of product defects:

1.) Design defect

2.) Manufacturing defect

3.) Marketing defect (warnings, instructions)

Courts use two tests to determine if a product is unreasonably dangerous:

1. Risk Utility Test (Dynamite)

2. Consumer Expectation Test ( What does the reasonable

consumer expect?)

Examples of Products Liability Cases

Liebeck v. McDonald’s Restaurants (New Mexico 1995)

> Is hot coffee (180° F) a “dangerously defective product?”

Ms. Liebeck’s injuries:

- 3rd degree burns;

- skin grafts;

- 8 days in the hospital;

- medical expenses of $80,000.

Current Product Liability Cases

Japanese (Sankyo Co. Ltd.) Diabetes Drug Rezulin

>Liver toxicity unacceptable

>Potentially thousands of plaintiffs

>Potential damages = $$$$$$$$$

Mattel: 9M more Chinese-made toys recalled

Toymaker pulls Barbie, Batman and 'Cars' characters, citing choking and lead hazard; more recalls may be coming.

By David Ellis, CNN August 15 2007: NEW YORK -- Mattel Inc. Tuesday recalled more than 9 million toys made in China and sold in the United States, including "Polly Pocket" and "Batman" dolls and other popular figures, because of loose magnets and lead paint - its second major recall in less than a month.

Avoiding Products Liability

* Product Testing

* Market Research (warnings)

* Quality Control

* Consumer Feedback (1-800 hotline)

* Insurance - $$$$

Intellectual Property Protection

What is Intellectual Property?

Intellectual Property Includes:* Software

* Book

* Movie

* Invention

* Business Idea or Process

* Domain Name

* Geographical Indication

* Trade Design/Industrial Design

* Trade Secrets

Intellectual Property Protection

Four Primary Methods of IP Protection:

1. Patents

2. Trademarks

3. Copyrights

4. Trade Secrets

Patents:

a means to protect ownership of a means to protect ownership of “useful things” or methods of “useful things” or methods of doing something.doing something.

Three Requirements for Patent Issue

- Novel ?

Never been patented before?

No prior public use or sale?

- Useful ?

Does the item do anything at all? (Toy)

- Not Obvious ?

Requires judgment ( More than just changing color or size of existing product)

Three Types of Patents

>Utility Patents (inventions or methods of doing

something) - 20 years;

>Plant Patents - 20 years

>Design Patents (Ornamental not Functional) -14 years

Cannot Be Patented

> Mathematical Algorithms (E = MC)

> Naturally Occurring Things (Wild Plants, Rain, Wind)

> Scientific Principles (2nd Law of Thermodynamics)

> Human Beings

U.S. Trademark & Patent Office (“USTPO”) Issues Patents

Patenting Process:

-Detailed Application to US Patent & Trademark Office;

-7 to 12 months processing;

-$7500 to $12,500 average costs;

-Generally utilize “patent attorney” (lawyer with engineering background).

Patent Protection: patent gives right to prevent others from duplicating your patent.

Owner of patent must enforce his or her rights. Not the USTPO.

Is U.S. Patent Enforceable in Other Countries?

>Generally Not.

>Some Bilateral Patent Cooperation Treaties

>WTO Agreement on Trade Related Aspects of Intellectual Property (TRIPS)

>Patent Protection: patent gives right to prevent others from duplicating your patent.

>Owner of patent must enforce (Not USTPO)

Intellectual Property Protection

Trademarks

What is a Trademark?

A Trademark is:

1. a distinctive sign of some kind (name, phrase, logo, symbol, design, image or combination of all);

2. used by an individual, business organization or other legal entity;

3. to uniquely identify the source

of its products and/or services to consumers.

Purpose of Trademark?

> Consumer Protection: trademark uniquely identifies the source of the product to consumers

> Business Protection: allows trademark owner to prevent others from using trademark

Common Trademarks

®Starlight Clinic“A place for where health shines” ®

®

How do you establish and protect your

trademark?

Two Methods:1. Registration with USTPO

2. Use of trademark in commerce

> Registration of Trademark with USTPO

*Takes approximately 1 year

*Costs approximately $3000 to $5000 USD

Benefits of USTPO Trademark Registration:

1. National Registry-Puts Others on Notice of your Trademark

2. Can officially use ®

3. Statutory protection not given to unregistered trademarks (3x damages, attorney fees)

Other USTPO benefits:

> Ownership of trademark incontestable after 5 years

> Right to use continues forever as long as you use trademark

> Is trademark registered in U.S. protected internationally?

*Depends on treaties and duration of use in foreign county.

*USTPO registration aids foreign registration of trademark.

Creation of Trademark By Use

> How? Use “TM”

> Disadvantage:

No statutory protection (no 3x damages, no attorney fees)

What is a copyright?

> A Copyright is a set of exclusive rights regulating the use of a particular expression of an idea or information.

>Copyrights apply to wide range of creative, intellectual or artistic forms: *Poems *Thesis *Plays *Books *Movies

>Choreographic works (dances, ballets etc)>Musical compositions>Audio recordings>Paintings>Photographs>Software>Radio/ television broadcasts of live

performances

A copyright provides exclusive rights to owner to:1. Copy

2. Sale

3. Create derivative works

4. Perform the work

5. Sell or assign the copyrights to others

How long does a copyright last?

>Life of author plus 70 years.

>Certain works of hire 95 to 120 years from date of creation.

EXPIRATION OF COPYRIGHT

After copyright expires the work passes to the “public domain.”

>How is the copyright established?

> Copyrights occur when the work is fixed in a tangible medium of expression that can be seen by others ( book, film, sculpture)

>Use ©

Legal Considerations for the Naturopath’s Practice©2007 Philip S. Griffin

All rights reserved

> Make © mark obvious

* Computer program opening screen

* Title page of written works

* Base of art objects

> Registration of copyright with USTPO provides same protection as trademarks:

- 3x damages

- Recovery of Attorney Fees

Trade SecretsWhat is a trade secret?

-formula.

-process.

-cost, source information.

-customer lists.

Trade Secret Protection

> No registration of trade secrets

> Use Non Disclosure Agreements (“NDA”)

> Use Non Competition Agreements (“NCA”)

> Business Security (Shredding, Controlled Access, Locked Files, etc.)

Health Insurance Portability and

Accountability Act of 1996(“HIPAA”)

“Privacy Rule” : established for the 1st time standard privacy protection for health records.

Applies to: health care providers and health plan administrators, attorneys.

HIPAA Enforcement is by the Office of Civil Rights.

Violations can result in both civil and criminal penalties:> $100 per violation up to jail time of 10 years.

Insurance

ORS 742.061: provides for attorney fees in disputes against insurers.

Regulation of NaturopathsORS 685.010 to 685.990

-licensing

-disciplinary

-formulary

-penalties

Legal Resources>Lewis & Clarke Law Library

>Multnomah, Clackamas and Washington County Circuit Courts have law libraries

>Oregon Sec. of State website has all ORS and regulations.

>psgriffinlaw@comcast.net

End

Thank you