Tag: 2022 News

The Federal Arbitration Act or FAA, enacted February 12, 1925, is federal law that provides for private dispute resolution through arbitration. The FAA recognizes benefits to society as a result of resolution of disputes in expeditious systems. It is most often implemented by use of an arbitration clause in the contract between the parties.  

An arbitration clause is a clause in a contract that requires the parties to resolve their disputes through an arbitration process. Mandatory arbitration clauses are widespread in the United States. For example, 15 of the largest 20 U.S. credit card issuers, and 7 of the 8 largest cell phone companies have arbitration clauses for resolution of disputes with customers.

In employment law, many employers have mandatory arbitration clauses in contracts with their employees, for the purpose of limiting the possibility of extreme jury verdicts in favor of former employees, as well as the risk of costly class action litigation.

Section 2 of the FAA declares that arbitration provisions will be subject to invalidation only for the same grounds applicable to contractual provisions generally, such as unconscionability or duress. Consequently, most state law that attempts to disfavors or limit the enforcement of mandatory arbitration agreements are preempted by the FAA.

Substantial federal and state litigation has evolved over the years on the issue of federal preemption precluding the ability of any state’s attempt to restrict an employer’s rights to force mandatory arbitration of disputes with employees. Generally speaking, individual states have not been successful in litigation efforts to limit the preemption provisions of the FAA.

However, President Biden has just signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This Act was introduced in 2017.

The Act amends the Federal Arbitration Act to give employees who are parties to arbitration agreements with their employers the option of bringing claims of sexual assault or sexual harassment either in arbitration or in court.

The Act amends the FAA to include a new section, which states, in part: “[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

Thus this new Act is an employment law game changer. It gives employees the option to circumvent arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims.

The Act applies to all claims that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue. The Act, however, does not affect claims that arose or accrued before March 3, 2022.

The Act does not affect otherwise valid arbitration agreements for claims that are not related sexual assault and sexual harassment. What is unanswered in the new law, is how it will apply when sexual assault and sexual harassment claims are intermixed with other employment law claims in a single litigation filing.

At the Interdisciplinary Conference on Orthopedic Value-Based Care, According to an article in Helio, Randy Fagin, MD, chief medical officer – national group of HCA Healthcare, said among the 183 hospitals in the HCA Healthcare system, about 88,000 hip and knee replacements are performed annually, not including those performed at the system’s 125 ASCs.

And according to Dr. Fagin, “Physicians who use robotics are growing faster, 36% year-over-year case growth vs. 7% for those who are not using robotics.”

However, a factor that may be disruptive to robotics is augmented reality (AR), Fagin said. “Augmented reality is, I believe, going to be disruptive to robotics, massively disruptive. It is going to come on slow.”

However, because AR is a disruptive innovation, “it’s going to hit a dynamic growth curve” followed by a logarithm rise in utilization, until such time that the utilization levels out and become commoditized, Fagin said.

“We’re going to hit a logarithmic rise in utilization of augmented reality in hip and knee replacement and it will disrupt the robotic marketplace,” he said.

An article published by Stanford University helps explain how this new technology might be used by surgeons.

Surgeons make their way down to the Neurosurgical Simulation Lab to practice an upcoming operation. Because they’re practicing on images from the actual patient, rather than a generic brain, they can map out the surgery ahead of time. “It’s a window into the brain – and a window into the brain of the particular patient we’re going to operate on,” said Anand Veeravagu, MD, an assistant professor of neurosurgery and the head of the Stanford Neurosurgical Simulation Lab.

The three-dimensional aspect of the imagery eases surgeons’ planning and improves the accuracy of the surgery, with the aim of producing safer procedures. “We can plan out how we can approach a tumor and avoid critical areas like the motor cortex or the sensory areas,” said Steinberg, professor and chair of neurosurgery. “Before, we didn’t have the ability to reconstruct it in three dimensions; we’d have to do it in our minds. This way it’s a three-dimensional rendering.”

Stanford Medicine doctors are using the VR technology for the brain and spinal cord because these organs are stable and lend themselves to imagery – unlike other body parts, which move with blood flow and breathing. But Malie Collins, MS, senior program lead for the VR program said the technology may soon be available for the rest of the body.

Surgeons typically use video feeds while they are operating, but the new VR technology adds a three-dimensional view which they can superimpose on the real-time video. “It has much, much more detail,” said Steinberg.

And Johns Hopkins neurosurgeons have performed the institution’s first augmented reality surgeries in living patients. During the first procedure on June 8, 2020, the physicians placed six screws in a patient’s spine for spinal fusion surgery to fuse three vertebrae in order to relieve the patient’s chronic, debilitating back pain. For the second surgery on June 10, surgeons removed a cancerous tumor known as a chordoma from the spine of a patient.

The technology used by the physicians for the augmented reality surgeries consisted of a headset with a see-through eye display that projects images of the patient’s internal anatomy such as bones and other tissue based on CT scans – essentially giving the surgeons X-ray vision.

“When using augmented reality in the operating room, it’s like having a GPS navigator in front of your eyes in a natural way so you don’t have to look at a separate screen to see your patient’s CT scan,” says Timothy Witham, M.D., director of the Johns Hopkins Neurosurgery Spinal Fusion Laboratory and professor of neurosurgery at the Johns Hopkins University School of Medicine.

Salvador Mendoza claimed a specific injury to the back, lower extremities, nervous system and psyche while employed as a stocker by Esparza Enterprises, Inc., on July 25, 2005. After a 2007 trial the WCJ issued a decision finding injury AOE/COE to the low back, ten percent permanent disability, and the need for future medical treatment.  On May 28, 2010, Mendoza filed a Petition to Reopen this case against Esparza Enterprises claiming new and further disability.

Then on October 31, 2011 Mendoza filed an application for continuous trauma to his lumbar spine and psyche while employed as a baker’s helper by Smith’s Bakeries from March 1, 2006 to November 30, 2008.

Smith’s Bakeries denied AOE/COE, and further asserted the claim was barred by the one year filing limitation of section 5405, and that applicant filed the claim after notice of termination of layoff in violation of section 3600(a)(10). Smith’s Bakeries claimed it terminated applicant’s employment after applicant engaged in a verbal altercation with his supervisor.

On June 5, 2014, applicant settled his claim against Esparza Enterprises, including the Petition to Reopen, by way of Compromise and Release. Esparza reserved its rights to seek contribution or reimbursement from Smith’s Bakeries. And on February 2, 2016 Mendoza resolved his claim against Smith’s Bakeries by way of C&R and in paragraph 9 of the agreement, defendant maintained its denial of injury AOE/COE, and further asserted that the statute of limitations barred compensation.

The Smith’s Bakeries case proceeded to trial to resolve lien claims and the WCJ found injury AOE/COE, and that section 5405 did not bar the claim because defendant did not deny the claim until December 29, 2011, and also determined that the claim was not barred by section 3600(a)(10), because the date of injury pursuant to section 5412 occurred after the date of notice of termination or layoff.

Reconsideration was granted and the finding of injury AOE/COE was reversed in the panel decision of Mendoza v Smith’s Bakeries – ADJ8051802; ADJ1757644 – (April 2022).

The WCJ’s finding of AOE/COE was based the reporting of AME Dr. Sohn and the reports of QME Dr. Matloob. The WCAB concluded that neither of their reports met the substantial medical evidence standards.

The WCAB panel noted that “in order for a report to be substantial medical evidence, the opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions,” citing the California Supreme Court decisions in  Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; and Granado v. Workers’ Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647], and the en banc WCAB panel decision of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 [2005 Cal. Wrk. Comp. LEXIS 71].

Dr. Sohn provided no substantive description of applicant’s job duties while working for Smith’s Bakeries, and no explanation for why those job duties would have resulted in injury. Dr. Sohn does not describe what specific evidence he relied upon in revising his previously stated opinions that injury arose solely from employment with Esparza. The report offers percentages of causation as between Esparza and Smith’s Bakeries, but does not detail how the AME arrived at those percentages. The entirety of the AME’s apportionment analysis is contained in a two sentence paragraph, which does not adequately set forth reasoning in support of the AME’s conclusions.

In the absence of a clear understanding of applicant’s job duties at Smith’s Bakeries, the conclusion that any new disability would be attributable to applicant’s employment at Smith’s is not based on an adequate medical history.

The reporting of psychology QME Dr. Matloob was similarly unsubstantiated. The sole report from the QME reflects no record review. Thus, the conclusions reached in the QME reporting regarding causation, nature, and extent of the injury are predicated on applicant’s self-reporting at the examination. The lack of a record review impairs the QME’s ability to assess the relationship between the injuries claimed at Esparza and at Smith’s Bakeries. The significant discrepancies regarding the reported events of employment giving rise to the alleged psychiatric injury illustrate the necessity of a complete record review.

Lawmakers, lawyers, and patient advocates agreed Wednesday on proposed legislation that would increase California’s medical malpractice pain and suffering limit from the current maximum of $250,000 set in 1975.

The Los Angeles Times reports that the overhaul to the long-standing Medical Injury Compensation Reform Act of 1975, known as MICRA, with the deal requiring that it be signed into law by Gov. Gavin Newsom before June 28 – the deadline for removing a related measure from the Nov. 8 statewide ballot.  

This year’s ballot measure, if approved by voters, would have eliminated MICRA protections by creating a broad new category of lawsuits under which no cap on noneconomic damages or attorneys’ fees would apply.

California’s existing medical malpractice cap imposes a $250,000 limit on how much patients can be awarded for damages that are not directly related to medical bills and economic losses, such as lost earnings. But critics have argued that a cap on awards for pain and suffering severely limits how much injured children, retirees and stay-at-home parents can receive while also deterring attorneys from taking on the complex cases.

The revised framework under the negotiated agreement, reached after several weeks of intense negotiations between attorneys and doctors groups, includes several provisions that would update MICRA while continuing its medical liability protections. The most central provision would change the limits on noneconomic damages from the current $250,000 to:

– – Cases not involving a patient death: $350,000 starting Jan. 1, 2023, with an incremental increase over the next 10 years to $750,000.
– – Cases involving a patient death: $500,000 starting Jan. 1, 2023, with an incremental increase over the next 10 years to $1 million.
– – After 10 years, an annual 2% adjustment would apply to the limits.
– – These new limits would only apply to cases filed Jan. 1, 2023, or later; they would not apply retroactively.

“This agreement signals the end to one of the most longstanding battles in California politics, and strikes a fair balance protecting patients, while ensuring that physicians and other medical professionals can treat patients without fear of financial ruin,” Newsom said in a written statement. “This is an important victory for the stability and health of our healthcare system, and for patients across California.”

The agreement will be contained in amendments to AB 35 which sidesteps what would have otherwise been a bruising and expensive political fight. A ballot measure, if approved by voters, would have required non-economic damages in medical malpractice lawsuits to be tied to inflation dating back to 1975 while allowing judges and juries to award damages above the cap in cases where a person dies or is permanently and physically impaired, disfigured or disabled.

The decision to withdraw the measure in favor of action by the Legislature is notable. Prior to 2014, a statewide initiative was required to be on the ballot once voter signatures had been submitted and verified. Lawmakers changed the rules in an effort to spark more compromises instead of costly and often confusing political campaigns.

Efforts to increase the malpractice cap in 2014 almost became the first test of the new ballot measure rules, but a compromise failed and a MICRA overhaul ballot measure, Proposition 46, was overwhelmingly rejected by voters.

In December, a Times investigation found that since 2013, the Medical Board of California has reinstated 10 physicians who had lost their licenses for sexual misconduct. They included two doctors who abused teenage girls and one who beat two female patients when they reported him for sexually exploiting them. In addition, The Times found that the board had consistently allowed doctors accused of negligence to keep practicing and harming patients, at times leaving them dead, paralyzed, brain-damaged or missing limbs.

Lawmakers are currently weighing several legislative proposals to overhaul the state medical board, including a bill to permanently ban doctors convicted of sexually abusing patients and another that would change the makeup of the medical board to a public-member majority.

The Labor Commissioner’s Office has cited three temporary staffing agencies (Viking Staffing CA LLC, Human Bees Inc. and Marcos Renteria Ag Services Inc.), as well as joint employers Foster Farms, LLC and Foster Poultry Farms (“Foster Farms”), for nearly $3.8 million for their failure to inform 3,476 temporary workers of their available COVID-19 supplemental paid sick leave.

The Labor Commissioner’s Office in 2020 opened an investigation into Foster Poultry Farms, a processing plant in Livingston, after COVID-19 outbreaks were reported at the worksite. The investigation included an audit of payroll records, which determined that the temporary staffing agencies named above hired staff to fill in for permanent workers affected by COVID-19 outbreaks at the processing plant, but failed to inform the temporary staff of their rights to supplemental paid sick leave. The Labor Commissioner’s Office found the temporary staffing agencies, Foster Farms, LLC and Foster Poultry Farms jointly liable for these violations.

“Employers who contract with staffing agencies have a joint responsibility to protect the health of their workers. Employers are obligated to ensure that employees are made aware of sick leave benefits intended to protect workers, their families and the public from the spread of COVID-19,” said Labor Commissioner García-Brower.

The 3,476 temporary workers are owed a total of $3,783,800 in penalties. Human Bees, Inc. owes its 1,987 temporary workers $940,050; Viking Staffing CA, LLC owes its 341 temporary workers $377,850; and Marcos Renteria Ag Services Inc. owes its 1,148 temporary workers $2,465,900.

The 2022 supplemental paid sick leave law went into effect on February 19, 2022 and is retroactive to January 1, 2022. It provides covered employees up to 80 hours of COVID-19 related paid leave, with up to 40 of those hours for isolation and quarantine, receiving vaccines and caring for a child whose school or place of care is closed, and up to an additional 40 of those hours available only when an employee or family member for whom the employee provides care tests positive for COVID-19.

Workers whose employers have refused to provide paid sick leave or COVID-19 supplemental paid sick leave as required by law can file a wage claim or report the labor law violation online, or can call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636) from 9 a.m. to 4 p.m. Monday through Friday.