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Healthcare Reform, the Supreme Court, and the Election: Is it Over Yet? Access to Health Care through the Emergency Room Emergency Mental Health Care: How to Navigate in Harris County Harris County Therapeutic Courts: A Holistic Approach to Justice 63rd Harvest Party

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THE HOUSTON

inside... The HBA/TCH Medical-Legal Partnership

Volume 50 â&#x20AC;&#x201C; Number 4

January/February 2013

Health Care Access

News conference announcing the first HBA/TCH Medical-Legal Partnership

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contents Volume 50 Number 4

January/Febraury 2013

FEATURES HBA/TCH Medical-Legal 10 The Partnership By Michelle G. Friedberg

Reform, 14 Healthcare the Supreme Court, and the Election: Is it Over Yet? By Susan Feigin Harris

to Health Care through 22 Access the Emergency Room By Robert W. Painter

Mental Health Care: 26 Emergency How to Navigate in Harris County By Amy R. Parsons and Judge Rory R. Olsen

County Therapeutic Courts: 30 Harris A Holistic Approach to Justice By Farrah Martinez

Harvest Party Raises Record 34 63rd $613,900 for Houston Bar Foundation

The Houston Lawyer

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ÂŠThe Houston Bar Association, 2013. All rights reserved.

January/February 2013

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contents Volume 50 Number 4

January/Febraury 2013

34 33

departments Message 6 President’s Partnerships Exceed Expectations By Brent Benoit the Editor 8 From Raising Awareness of

Health Care Access By Keri D. Brown

Lawyers 33 Houston Who Made a Difference

Hortense Ward

By Judge Mark Davidson

SPOTLIGHT 36 COMMITTEE HAY Center Committee Helping

Youth Transition to Adulthood By Angela L. Dixon

in Professionalism 37 AC.E.Profile Rhodes

U.S. Operations and Compliance Counsel, Baker Hughes Incorporated. President, Texas Young Lawyers Association

the Record 38 OffBenny Agosto Jr. and

Victoria Goes to Court By Polly Graham

the Bar 39 AtJudicial Ceremonies Trends 40 Legal The America Invents Act By Al Harrison and Derek Mueller

The Numbers Show Success of Tort Reform Goals By Lynne Liberato and Kent Rutter Reviews 42 Media Business and Commercial

Litigation in Federal Courts, Third Edition Reviewed Jill Yaziji

The Houston Lawyer

On the cover: The Houston Bar Association’s Houston Volunteer Lawyers and Texas Children’s Hospital announced a new Medical-Legal Partnership at a news conference on November 1, 2012. Clockwise from upper left: Brent Benoit, president of the HBA; Randy Wright, executive vice president and chief operating officer, TCH; Jeff Gearhart, executive vice president and general counsel, Walmart; news conference attendees; Lori Armstrong, chief nursing officer, TCH; and media covering the event;. Read more about the HBA/TCH Medical Legal Partnership, beginning on page 10. Photos by Paul Kuntz, Texas Children’s Hospital.

January/February 2013

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Reading Law: The Interpretation of Legal Text Reviewed by Jeffrey L. Oldham

44 Litigation MarketPlace 45 Placement Service

president’s message

By Brent Benoit Locke Lord LLP

Partnerships Exceed Expectations

hope all of you had a very happy but blocked by legal problems that they and restful holiday season. The New cannot navigate because they are unable Year is always a good time to reflect to afford an attorney. on the prior year and look forward On November 1, 2012, I was privito the year ahead. At the Bar, we are leged to take part in a news conference mid-way through our year. So while to announce an important and innowe cannot look back on a full year right vative effort to assist families at Texas now, I do want to take a moment to let Children’s Hospital. Through a generous you know how we are doing so far. I am grant from Walmart, we are partnering proud to report success on several of the with Texas Children’s Hospital in the goals we set for the association. In some area’s first medical-legal partnership of cases, we have been able to far exceed its kind, providing an attorney on-site my expectations. through our Houston One of my goals One of my goals for Volunteer Lawyers and the bar year was to imutilizing the volunteer for the bar year prove access to health efforts of several Houswas to improve access care by assisting with ton law firms. legal barriers for lowThrough this partto health care by income families. Housnership we will work assisting with legal ton’s Medical Center to help a particularly barriers for low-income provides world class vulnerable population. medical care to people The illness of a child is families. facing a wide array of a particularly stressful health issues. We are also a city that and trying time for a family. This burboasts a growing and talented legal comden should not be compounded by the munity with the fifth largest metropolidifficulty of facing legal problems with tan volunteer bar in the country. Housno ability to obtain assistance. This proton Volunteer Lawyers, a project of the gram will work to alleviate this unnecesHouston Bar Association, has harnessed sary strain for families in need. Whether the talent of this legal community to proit is helping a family obtain the benefits vide free legal assistance to thousands of it needs to care for a child, working to individuals and families in need. Yet, we make sure a child returns to a home free have families that are lost between these of life threatening conditions like mold, two communities: in need of health care, or any of a host of legal issues related to

“

The Houston Lawyer

”

January/February 2013

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health care, TCH and Houston Volunteer Lawyers stand ready to help those that cannot help themselves. Every day families are touched, cared for, and even saved by the hard work and dedication of the staff of this amazing and ground-breaking hospital. Without TCH’s commitment to care for children and their families in a comprehensive way that extends beyond the bedside, a partnership like this would not work. On behalf of the HBA I want to say a heart-felt thank you to TCH and to WalMart for inviting our lawyers to be a part of this worthy effort. You can read more about this partnership in an article authored by Michelle Freidberg, the attorney for that medicallegal partnership, in this issue of The Houston Lawyer. Another goal was to raise awareness among our members and the public about human trafficking. We take pride in so many of Houston’s unique achievements, but shameful statistics also point to Houston’s position as a hub for human trafficking and forced labor. Through the hard work of some of our committees and members, we have presented several programs to explore the issues behind human trafficking and to educate our members on the legal issues involved. In October 2012 we presented a free seminar for HBA members on human

trafficking, featuring as speakers Edward Gallagher and Ruben Perez of the U.S. Attorney’s Office. They discussed the unique problems faced by the law enforcement community and non-governmental organizations in addressing the problem. The September-October issue of The Houston Lawyer focused on human trafficking, with an excellent series of articles by attorneys, advocates and law enforcement representatives, examining many aspects of the problem and how the community is addressing solutions. On January 31, we joined the Texas Young Lawyers Association and its president, Houstonian C.E. Rhodes, in sponsoring the debut of a new video produced by TYLA, “Slavery Out of the Shadows: Spotlight on Human Trafficking,” which will educate members of the legal profession on the problem and what they can do about it. On February 2, our Law & the Media Committee sponsored a panel discussion, “Confronting the Human Trafficking Epidemic,” which examined the issue from the perspectives of attorneys working as advocates, law schools sponsoring clinical programs, reporters covering related news stories, and law enforcement officials combatting the problem. A particularly moving part of that panel was the appearance of “Maria,” a woman who told her personal story as a human trafficking victim and survivor. We have had other successes that I will hopefully get a chance to talk more about later, including raising enough money for tens of thousands of meals for hungry Houstonians and planting 1000 trees at the Houston Arboretum. When we issue a challenge to our members, they rarely fail to meet that challenge. When I took office as HBA president in May, I was very excited about the things we had planned for our association in the coming year. I would like to thank you for helping us meet and exceed many of those goals in the first half of this year. I can hardly wait to see what the second half brings.

Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

January/February 2013

from the editor

By Keri D. Brown Baker Botts L.L.P.

Associate Editors

Julie Barry Attorney at Law

Angela L. Dixon Attorney at Law

Robert W. Painter Painter Law Firm PLLC

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Jill Yaziji Yaziji Law Firm

Raising Awareness of Health Care Access

his issue is the fourth of six that will be published this bar year, but by no means is The Houston Lawyer slowing down. The focus of this special issue is health care access. Then, our March/April issue covers the intriguing topic of “a futurist’s view of the legal profession” and we have an interesting line-up of articles for that issue. We conclude the bar year with our annual volunteerism issue in May/June. Our guest editors for that issue have taken our typical “volunteerism issue” formula and tweaked it ever-soslightly to give our readers a fresh perspective on the good work of the members of our bar. It has been an interesting ride at the helm of this magazine and all of our Editorial Board members look forward to finishing the year strong. One aspect of health care access that received a lot of attention in 2012 was that of mental health care. From James Holmes’ mass murder in Colorado in July, to Jared Loughner’s November plea deal and sentencing in Arizona for the mass murder and attempted assassination of Congresswoman Gabrielle Giffords, and finally to Adam Lanza’s December mass murdersuicide in Connecticut, mental health care and missed clues were the subject of much debate. Admittedly, the other debate—gun control—has taken the lion’s share of the discussion at the expense of mental health care. But it is generally understood that Holmes, Loughner, and Lanza each had mental health issues at the time each committed his crime. There rarely is just one root cause for atrocities of this magnitude in which 45 people lost their lives at the hands of one of these three men. But we can educate ourselves and others about the resources that are available – not simply for mental health care, but for health care as a whole. A mentally and physically healthy population surely is preferable to the alternative. The articles in this issue address a variety of top-

January/February 2013

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ics to help provide information and resources ranging from a national level down to what’s happening in Harris County today. In this issue, Michelle Friedberg discusses Houston’s first ever medical-legal partnership, which sees the HBA’s Houston Volunteer Lawyers partner with Texas Children’s Hospital to provide legal advice and representation to patients and parents. Following the format of other medical-legal partnerships around the country, the hope is that the partnership with Texas Children’s Hospital will be the first of several. Turning back to mental health care for a moment, Harris County Probate Court No. 3 staff attorney Amy Parsons and Judge Rory Olsen provide a roadmap to navigate the process of obtaining emergency mental health care in Harris County. Editorial Board member Farrah Martinez writes about the Harris County therapeutic courts that address mental health and addiction. These courts include the Star Drug Court (on the criminal court side), the Star Drug Court Family Intervention Court (a family drug court), Veterans Court (another criminal court initiative), and the Felony Mental Health Court (also on the criminal court side). Shifting the focus outside of the court system and into the national perspective, Articles Editor Robert Painter explains the process of and requirements to receive access to health care via the emergency room and the Emergency Medical Treatment and Active Labor Act. Finally, Susan Feigin Harris takes a closer look at the impact of the Patient Protection and Affordable Care Act and the 2012 presidential election and the resulting impact on healthcare delivery. Our guest editors for this issue were new board member Chance McMillan and longtime member Judy Ney. As always, our thanks go to them for their hard work in managing the various components that come together to bring this issue into your hands.

BOARD OF DIRECTORS President

Secretary

Brent Benoit

Laura Gibson

President-Elect

Treasurer

David A. Chaumette

M. Carter Crow

First Vice President

Past President

Benny Agosto, Jr.

Denise Scofield

Second Vice President

Todd M. Frankfort

DIRECTORS (2011-2013)

Hon. David O. Fraga Neil D. Kelly

Alistair B. Dawson Brent C. Perry

Jennifer Hasley Daniella D. Landers

DIRECTORS (2012-2014) Warren W. Harris John K. Spiller

editorial staff Editor in Chief

Keri D. Brown Associate Editors

Julie Barry Robert W. Painter Jill Yaziji

Angela L. Dixon Don Rogers

Erika Anderson Suzanne Chauvin Jonathan C.C. Day Polly Graham Stephanie Harp Hon. Dan Hinde Chance McMillan Jeff Oldham Tamara Stiner Toomer

Editorial Board

Sharon D. Cammack Melissa Davis Sammy Ford IV John S. Gray Al Harrison Farrah Martinez Judy L. Ney Hon. Josefina Rendon

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim Administrative Assistant

Ron Riojas

Ashley G. Steininger

Membership Assistant

Administrative Assistant

Bonnie Simmons

Ariana Ochoa

Receptionist/Resource Secretary

Committees & Events Director

Lucia Valdez

Claire Nelson

Director of Education

Lucy Fisher Cain Continuing Legal Education Assistant

Amelia Burt

Committee & Events Assistant

Rocio Rubio

Communications Director

Communications/ Web Designer

Tara Shockley

Brooke Benefield

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January/February 2013

The HBA/TCH Medical-Legal Partnership The HBA’s Houston Volunteer Lawyers and Texas Children’s Hospital Join Forces to Help Low Income Families Overcome Legal Issues that Affect Patient Health

Brent Benoit, president of the Houston Bar Association ce presit, executive vi Randy Wrigh r, Texas erating office dent, chief op pital Children’s Hos

Photos by Paul Kuntz, Texas Children’s Hospital

Jeff Gearhart, executive vice president and general counsel, Walmart

By Michelle G. Friedberg

enced by the “conditions in which people are born, grow, live, work and age.”2 These conditions, referred to as “social determinants of health,” are shaped by our physical and social environments, and they are largely responsible for the

ouston is home to a worldrenowned medical center with the largest medical complex in the world. Individuals travel from near and far to receive first-class medical treatment in our city; even so, research shows that Houstonians continue to suffer preventable health conditions and face barriers to health care access. To meet this challenge, the Houston Bar Association’s Houston Volunteer Lawyers has partnered with Houston’s premiere children’s Lance Lightfoot, general counsel, Texas Children’s hospital, Texas Children’s, to cre- Hospital; HBA president, Brent Benoit; Alissa Ruate the first medical-legal partner- bin Gomez, executive director of the HBA’s Houston ship in Houston. This new program Volunteer Lawyers brings together lawyers, doctors and sohealth inequities we see in vulnerable cial workers to improve health outcomes populations. for low-income families by addressing Health costs and outcomes are deeply socioeconomic and environmental facconnected to the social determinants of tors that affect patient health. The Texas Children’s Medical-Legal Partnership (MLP) provides free legal advice and representation to Texas Children’s patients and their families with help from pro bono attorneys and will train health care providers at the Hospital to identify and triage legal issues affecting their patients’ health. The MLP is the product of a rec- Members of the boards of directors of the Houston ognized trend in the United States Bar Foundation and Houston Volunteer Lawyers at that patient health is affected by far the news conference. From left: Michelle Friedberg, John Strasburger, Thomas M. Roche, Alissa more than just traditional medi- Rubin Gomez, Bill Buck, Susan Sanchez, Norma cine. Poverty is one of the most im- Trusch, Barrett Reasoner, Brent Benoit, Stewart pactful. The percentage of children Gagnon, Bob McAughan, and Neil Kelly. living below the federal poverty level is higher in Houston than the national average.1 Poverty has devastating effects on all stages of development, and it can lead to food insecurity, inadequate health care, inferior housing conditions and poor school and employment outcomes, eventually leaving lasting consequences on overall health. Research consistently shows that health is influ-

health. To improve them, then, the provision of quality health care means addressing a patient’s social needs. Many of these social needs3 are in fact, legal needs — “an adverse social condition with a legal remedy.”4 While the impact of social determinants is often recognized by health care providers, addressing those needs remains a challenge, particularly for low-income patient fam-

ilies. Lawyers can play a special role in supporting the health of our communities, and they can help alleviate and remove the social determinants of health that lead to and exacerbate poor health. The right to free counsel in the United States is, minus a few exceptions, limited to criminal cases that make up a small percentage of the legal problems individuals and families actually face. There are some free legal services available for low-income people with civil legal problems, but the need far outweighs the supply. In the general population, there is approximately one private lawyer for every 429 people; there is one legal aid lawyer for every 6,415 people living in poverty.5 Pro bono and reduced-fee programs for low-income individuals and families are, thus, a critical component of the civil legal assistance system. The medical-legal partnership model contributes to this network by uniting local legal service providers with local healthcare institutions to coordinate care, detect legal problems early, and leverage scarce resources on behalf of specific, underserved patient populations. Unfettered access to health care will not cure intractable health issues arising from the social determinants of health, because not every illness has a biological cure. Lawyers can become key partners of the health care team by addressing these legal issues, and they can train health care providers to be mindful of the social determinants of health and the legal issues preventing them from achieving healthy outcomes. For example, while there are widespread government programs and policies designed to meet social and material needs, complex application processes and inconsistent implementation both pose a barrier to families’ access to these programs. Often, qualified and deserving patients are denied benefits to which they are entitled, and they need legal assistance with the appeals process to secure access to food, disability benefits, an appropriate special education plan,

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January/February 2013

or accommodations at school. Lawyers can also intervene to address other legal needs affecting overall health and wellness, including improving housing/living conditions, obtaining guardianships for unrelated caregivers without the right to consent to medical care, and securing modifications to accommodate children with physical disabilities. The Texas Children’s MLP is the first program of its kind in Houston, thanks to a generous donation from Walmart, which created a successful MLP with Arkansas Children’s Hospital last year and plans to expand the benefits of MLPs to other major pediatric hospitals nationwide. The partnership at Texas Children’s Hospital is working with social workers in five clinics within the Hospital: Special Needs Primary Care Clinic, In-Patient Rehabilitation, Retro Virology, Fetal Center, and Texas Children’s Pediatrics (Gulfgate). The vision of the MLP is to eventually expand the program to cover all units of Texas

January/February 2013

Children’s Hospital. Houston Volunteer Lawyers delivers free legal services to qualified applicants by linking them with attorneys who volunteer their time on a pro bono basis. To date, Houston Volunteer Lawyers has six Houston law firms that have committed to be “go to” pro bono firms in this endeavor: Akin Gump, Baker Hostetler, Bracewell & Giuliani, Fulbright & Jaworski, King & Spalding, and Vinson & Elkins. The Texas Children’s MLP launched on November 1, 2012, and it already has been handling consultations and referring cases to pro bono attorneys on a variety of legal issues. These include guardianships as pediatric patients transition into adulthood, adoption, questions related to custody and paternity, issues regarding habitability and living conditions, and special education cases ranging from initial evaluation and testing to adherence to an individualized education plan to accommodations for children with functional limitations and increased challenges in their

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educational settings. The Texas Children’s MLP is an effective allocation of scarce resources and a true opportunity to help improve a child’s quality of life. To become involved, contact Michelle Friedberg at mgfriedb@texaschildrens.org or 832826-7202. Michelle G. Friedberg, MPH, JD is sthe staff attorney for the Texas Children’s Hospital Medical-Legal Partnership. Endnotes 1.

4. 5.

Children at Risk, Growing Up In Houston: Assessing the Quality of Life of our Children, 20 (Robert Sanborn, Mandi Sheridan Kimball, Dawn Lew, Jennifer Michel Solak, Diana Zarzuelo, eds., 2010), available at http:// childrenatrisk.org/research/book/. World Health Organization, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (2008), available at http://www.who.int/social_determinants/ thecommission/finalreport/en/index.html. Poverty, Health and Law: Readings and Cases for Medical-Legal Partnership, 30. (Elizabeth Tobin Tyler, Ellen Lawton, Kathleen Conroy, Megan Sandel, Barry Zuckerman, eds., 2011). Id. at 72. Id. at 57.

Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Adair & Myers PLLC Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus & Scarborough LLP Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Godwin Lewis, P.C. Goldstein & Lipski, PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harris, Hilburn & Sherer

Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hartline Dacus Barger Dreyer LLP Hays McConn Rice & Pickering, P.C. Hicks Thomas LLP Hirsch & Westheimer, P.C. Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L. L. P. Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP McGinnis Lochridge & Kilgore LLP McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Reynolds, Frizzell, Black, Doyle, Allen & Oldham L.L.P. Roach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C.

Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris, LLP Singleton Cooksey LLP Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P. Firms of 25-49 Attorneys Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Olson & Olson LLP Seyfarth Shaw LLP Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P. Morgan, Lewis & Bockius LLP

Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell Industries MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas

By Susan Feigin Harris

Healthcare F Reform, the Supreme Court, and the Election: Is it Over Yet?

ollowing the 2012 election, it might appear that the fate of the Patient Protection and Affordable Care Act (the “Affordable Care Act” or the “Act”) has been cemented into the history books and, in fact, there are efforts to move forward with its implementation. However, the Affordable Care Act is a comprehensive piece of legislation that has a far reach and the implementation of its various provisions is far from complete or assured. This article provides an overview of certain components of the law, the importance of the Supreme Court decision,1 and how the outcome of the election will likely impact healthcare delivery in the years to come. Important Issues Relevant to Implementation of the Affordable Care Act The Affordable Care Act (Pub. L. 111-148) and the Health Care and Education Reconciliation Act of 2010 (signed into law by President Obama on March 30, 2010) together represent the signature legislative initiative of the first Obama term. While Democrats and Republicans often differ dramatically on their approaches, both sides acknowledge the consequences of escalating healthcare costs and the rise in the number of uninsured Americans. Additionally, both Democrats and Republicans now recognize that the ongoing fiscal cliff issues and the deficit will continue to drive healthcare governmental program changes in the years to come. Both parties acknowledge that entitlement reform is a means to control spending; this author thinks that a framework for entitlement reform will be established as the 113th Congress turns its attention to solving our country’s fiscal woes. The impact of rising healthcare costs and the Affordable Care Act’s provisions and innovations to drive healthcare costs down will continue to be in the spotlight. The Affordable Care Act is comprehensive; it deals with issues including (but certainly not limited to) insurance mar-

ket reform, healthcare delivery system reform, Medicaid expansion, incentives to improve access to primary care, fraud and abuse prevention, changes for tax exempt hospitals, restrictions on physician investment in entities to which they refer patients (commonly referred to as “Stark Law” changes), and various taxes on device manufacturers and changes for pharmaceutical companies. Notably, the Act establishes multiple demonstration programs in Medicare and Medicaid, including a five-year state demonstration program to evaluate alternatives to medical tort litigation, closing the Medicare prescription drug “donut hole,” and restructuring payment for Medicare Advantage plans. In addition to changes to the health care system itself, the law seeks to improve coverage for the significant number of uninsured Americans. As a result, the Act includes the “individual mandate,” employer mandates, and a Medicaid expansion, in an attempt to ensure that every person has access to some type of insurance coverage. The Act also seeks to provide access to affordable insurance by establishing new marketplaces for purchasing insurance, called “Exchanges.” These were contemplated to be implemented in each state, but the reality at present is that the federal government may be creating a federal Exchange and implementing it for a fairly large number of states, including Texas, whose governors decline to participate. Tax credits, subsidies and other incentives will be provided for certain employers and low-income individuals to help purchase insurance from the Exchange, all of which should be ready for implementation in 2014. This aspect of the Act will require close scrutiny and some of its provisions may be scaled back to accommodate the reality of the fiscal cliff discussions. While many legislative policies do not come into effect under the Act until 2014, the following immediate changes were implemented within six months of enactment: • Group health plans and insurance issuers were immediately prohibited

from establishing lifetime or unreasonable limits on benefits; • Rescissions of health insurance policies were immediately prohibited; • All plans were required to cover preventive services, immunizations, certain child preventive services recommended by the Health Resources Service Administration and certain preventive services for women, without any cost sharing; • Dependent coverage was extended up to age 26; • Insurance company administrative expenses were capped and a minimum medical loss ratio was prescribed; and • Plans offering coverage for emergency medical services were required to cover emergency services without preauthorization or network participation, regardless of the terms of coverage and in the same manner as in-network emergency services are covered under the plan. Other insurance reforms required by 2014 include guaranteed issue and renewal and bans on the imposition of any waiting periods of more than 90 days for insurance coverage. Additionally, beginning in 2014, an individual’s participation in a clinical trial may not be denied. Routine patient costs in connection with the clinical trial are also covered. Ways in which we deliver care already have been significantly impacted by the Affordable Care Act. The Act created the Center for Medicare & Medicaid Innovation (CMMI) within the Centers for Medicare & Medicaid Services for testing and expanding new payment models that significantly change the way in which hospitals and physicians get paid, tying payment to quality outcomes and making providers accountable for coordinating the care of patients across a larger spectrum of the healthcare delivery system. CMMI has been active in operationalizing the reforms of the Affordable Care Act, accepting grant applications from private healthcare providers and states to create regional delivery networks for individuals

with chronic illness, innovative approaches to improvements in quality, and new payment options for healthcare providers that align incentives away from volumebased payment towards rewarding quality and efficiency in care delivery. To ameliorate an anticipated shortfall of some 40,000 family practitioners predicted by the American Academy of Family Physicians to occur in 2020, the new law contains millions of dollars directed toward attracting more physicians to the field through reallocating graduate medical education reimbursement and increasing payments to primary care physicians. It also directs the Secretary of Health and Human Services to award grants to teaching health centers for establishing new accredited primary care residency programs or expanding current programs. The Act also expands the reach of the Medicaid program, which now covers childless adults. While many children and pregnant women currently receive access to care under Medicaid, most childless adults are not covered under state Medicaid laws. The Act now requires states to cover all U.S. citizens and legal residents earning up to 133 percent of the federal poverty level beginning in 2014. States receive considerable assistance for expanding Medicaid, including a 100 percent matching rate for all newly eligible Medicaid individuals from 2014-2016. This assistance is scaled back to 95 percent in 2017, 94 percent for 2018, 93 percent for 2019 and 90 percent for 2020 and thereafter. The Affordable Care Act also provides for higher reimbursement rates for physicians who provide services to Medicaid beneficiaries. For primary care physicians, including family medicine, general internal medicine, and pediatrics, the Affordable Care Act requires that Medicaid reimbursement be 100 percent of Medicare payment rates for 2013 and 2014. States will receive 100 percent of the federal financing required to support the increased reimbursement rates. However, because of laws unrelated to the Affordable Care Act, some fear that physician reimbursements

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will actually be cut. The 112th Congress grappled with the Budget Control Act, which contained an automatic two percent across the board decrease in spending. Additionally, the Balanced Budget Act of 1997 includes mandatory cuts to physician reimbursement. Congress has enacted short-term freezes on this reduction, the most recent of which expired in January 2013. If this is not permanently fixed or managed, physicians are slated to receive a 27 percent reduction in Medicare reimbursement. How the implementation of the Affordable Care Act will be impacted by and interwoven into the talks and compromises worked out in Congress is anybody’s guess, but the ultimate success of the Act may hinge on whether the new law can successfully “bend the cost curve” associated with improving access to coverage for an additional 32 million uninsured Americans. To that end, the Act contains a number of provisions directed at initiating healthcare delivery system and pay-

January/February 2013

ment reforms. The Congressional Budget Office (CBO) originally estimated that the Act would cover 32 million uninsured and reduce the federal deficit by $143 billion between 2010 and 2019 at a net cost of $938 billion over ten years. Following the release of the Supreme Court opinion, the CBO released a new report, estimating that six million fewer people would have coverage than estimated, which brought the 11 year cost of the Act down to $1.168 trillion, or $84 billion less than originally estimated. CBO also estimated that repeal of the Act would add $109 billion to the federal deficit over the next decade. Impact of the Supreme Court’s Decision on the Implementation of the Affordable Care Act The Supreme Court decision in the case considering the constitutionality of aspects of the Affordable Care Act, National Federation of Independent Business v. Sebelius, further complicates the landscape.2 While many have focused on the fact that

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the Court upheld the individual mandate, few have recognized the impact of some of the nuances in the dicta, or that the decision has dramatically changed Medicaid expansion, which is a key component of the Act’s promise of covering a significant number of uninsured Americans. The decision, issued June 28, 2012, did not disappoint in terms of complexity, as a deeply divided Court considered several issues involving the Affordable Care Act: (1) whether the Supreme Court was first barred from even considering the case at all under an arcane tax provision of the Anti-Injunction Act that would prevent an issue from being considered until a tax is actually imposed; (2) whether the individual mandate that requires individuals to purchase a health insurance policy overstepped federal authority under the Constitutional provisions of the Commerce Clause or the Necessary and Proper Clause; (3) whether the individual mandate was severable from the rest of the Affordable Care Act; and (4) whether

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a penalty that would withdraw all federal Medicaid funds for failure to comply with the expansion coerced states to expand Medicaid in violation of the Spending Clause of the Constitution. The Court came to a majority consensus on each of these questions, though in order to discern it, the reader must parse through all of the majority, concurring, and dissenting opinions The Court quickly dispensed with the Anti-Injunction Act question and by a majority vote of 5-4, upheld the individual mandate as an appropriate use of the Congress’ taxing power. However, Chief Justice Roberts first found that the individual mandate was an unconstitutional use of Congress’ power under the Commerce and the Necessary and Proper Clauses, providing important dicta on the limits of the Commerce Clause for future courts. Justices Ginsburg and Sotomayor sided with the majority opinion on the constitutionality of the individual mandate, but disagreed with the Chief Justice’s rationale as set forth in his majority opinion.

January/February 2013

Justices Ginsburg and Sotomayor found that the individual mandate was a constitutional use of Congress’ power under the Commerce and Necessary and Proper Clauses. With respect to the Medicaid expansion, Chief Justice Roberts and Justices Kagan and Breyer found that the Medicaid expansion itself was constitutional, but that the coercive enforcement mechanism of withholding all Medicaid dollars from states refusing to follow the rules was not constitutional. Justices Thomas, Scalia, Alito and Kennedy found the entire Medicaid expansion, including the coercive enforcement mechanism, unconstitutional. Thus, seven justices found elements of the Medicaid expansion unconstitutional as a use of Congress’ spending power. Justice Ginsburg’s opinion made clear that while she agreed with the end result— upholding the Medicaid expansion—and also agreed with the remedy of severing the penalty, she firmly disagreed that the penalty, as drafted, was unconstitutional. Thus, Chief Justices Roberts and Justices

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Kagan, Breyer, Ginsburg and Sotomayor made up the requisite majority agreeing that the appropriate remedy was to sever the offending provision to allow the Medicaid Expansion to continue unabated. Chief Justice Roberts wrote in his majority opinion, “In this case, the ‘financial inducement’ Congress has chosen is much more than ‘relatively mild encouragement’- it’s a gun to the head.” The Chief Justice focused on the fact that the Medicaid program, as enacted, covered discrete categories of individuals: pregnant women, children, needy families, the blind, the elderly and the disabled. He then looked at the population covered by the expansion, mostly childless adults, and rationalized the expansion as a separate and distinct Medicaid program, layered on top of the original Medicaid program, finding elements of the language in the ACA to support his premise. Moreover, the Chief Justice argued, legitimacy under the Spending Clause depends upon whether states “voluntarily and knowingly accept” the terms of programs such as Medicaid.

Thus, Roberts agreed with the states’ argument that withholding existing Medicaid funding as a mechanism to obtain cooperation in the expansion “serves no purpose other than to force unwilling States to sign up for the dramatic expansion in health care coverage affected by the Act.” Justice Ginsburg pointed out in her opinion that the federal government would be providing 100 percent of the funding initially, transitioning over time to no lower than 90 percent. Justice Ginsburg argued that the real financial impact to the states was minimal and could not, therefore, be considered unduly coercive. Justice Ginsburg also pointed out that this was not the first time populations had been expanded under the Medicaid program, in her attempt to undermine the two-program theory advanced by the Chief Justice. Justice Ginsburg reminded the Chief Justice that this case is the first time that the Court has found an exercise of Congress’s Spending Power unconstitutionally coercive. Chief Justice Roberts, however, coun-

tered Justice Ginsburg in a lengthy and important footnote: “[T]he size of the new financial burden imposed on a State is irrelevant in analyzing whether the State has been coerced into accepting the burden. ‘Your money or your life’ is a coercive proposition, whether you have a single dollar in your pocket or $500.” Chief Justice Roberts then wrote what will long be held up as the most confounding language for those attempting to discern the meaning of future amendments to the Medicaid

law: “We have no need to fix a line... It is enough for today that wherever that line may be, this statute is surely beyond it.” While Justice Ginsburg’s opinion concurred in part, enabling both the individual mandate and the Medicaid expansion to be upheld, at least in part, she asked the seminal question, as relating to the Medicaid expansion; “When future Spending Clause challenges arrive, as they likely will in the wake of today’s decision, how will litigants and judges assess whether ‘a

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State has a legitimate choice whether to accept the federal conditions in exchange for federal funds?’” The State of Medicaid Today As a direct result of the Supreme Court decision, states may now “opt in” to the Medicaid expansion with little fear of any adverse consequences for failure to participate in this key component of the Affordable Care Act. This was not anticipated and throws a wrench into the Obama

Administration’s attempt to move forward with the Act’s Medicaid expansion that was designed to cover some 16 million uninsured individuals in the United States. Since the decision was announced, several governors have openly indicated their refusal to participate in the Medicaid expansion, and a larger number have also indicated a reluctance to move forward with the establishment of healthcare exchanges, the second key provision of Affordable Care Act for reducing the large numbers of

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uninsured in the U.S. The Secretary of Health and Human Services has issued a number of guidance letters to the states, providing more leniency in notification relating to the establishing of an exchange—the deadline was most recently pushed to December 14, 2012—and in the option to expand Medicaid programs, noting that states may opt in and later opt out of participation in the Medicaid expansion.3 Additionally, important questions have arisen regarding the hospital industry’s tacit agreement to significant reimbursement reductions, in anticipation of the reduction in the number of uninsured individuals. If states fail to expand their Medicaid populations and also fall behind in implementation of the insurance exchanges, predictions are that we will continue to have a large population of uninsured individuals. Thus, the need to help compensate hospitals for treating the uninsured and the shortfall associated with Medicaid payments will not be eliminated, resulting in huge reimbursement shortfalls for hospitals. Many thought, or hoped, that the Supreme Court’s decision and the election might introduce some certainty into the health care arena. The fact is that the decision has raised more questions relating to how the Medicaid program will be implemented in the future, how much discretion states have in implementation of the Act and whether future changes to the Medicaid program will be binding upon the states in the same manner that the laws have been in the past. Susan Feigin Harris is a partner at Baker Hostetler LLP, where her practice focuses on providing comprehensive legal services to health industry clients, including hospitals, physicians and academic medical centers. She is board certified in Health Law by the Texas Board of Legal Specialization. Endnotes

bers of the Bar Exclusively protecting mem rly 40 years. and their families for nea

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1. 2. 3.

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012). Id. Letter from Secretary Sebelius to Republican Governors Association, November 15, 2012, available at http://www. healthcare.gov/law/resources/letters/exchange-declarationdeadline.pdf.

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By Robert W. Painter

I Access to

Health Care through the Emergency Room

n the past, most people went to the emergency room only if there was a real medical emergency. In recent years, as access to health care has become increasingly challenging, more and more people have relied on emergency rooms for both emergency and nonemergency health care. In the time period of 2000 through 2009, there was an increase of 28 million annual emergency room visits in the United States.1 According to 2009 data for emergency room encounters, significant numbers were for patients who were uninsured or recipients of government health care benefits.2 The impact of the staggering increased demand on emergency rooms is significant. Crowded emergency rooms are causing patients to experience delays in receiving care, ambulances to divert patients to other hospitals, and an overall insufficient capacity to handle large numbers of patients from a public health crisis or catastrophic event.3 A Houston-based study found a strong correlation between primary care-related emergency room visits with the rate of poverty and the lack of health insurance, demonstrating another factor accounting for the increase in the overall demand for emergency room care.4 More than 25 percent of all ambulatory (non-emergency) care visits by the uninsured are in emergency departments, compared to only seven percent for the privately insured and 17 percent for Medicaid enrollees.5 Regardless of insurance status, the shortage of primary care physicians and the inability to meet the demand for ambulatory care have caused some of the excess demand to shift to emergency rooms.6 These are serious and challenging issues for society that have a tremendous impact on public health and finances. In addition to these considerations, though, the distinction between patient utilization of emergency rooms for primary care versus

true emergency care has major implications in terms of access to care and the liability of health care providers. The Emergency Medical Treatment and Active Labor Act One of the first efforts by the U.S. government to address access to care focused on emergency medical care. In the 1980s, an estimated 250,000 patients were refused emergency medical care annually because they were uninsured and lacked the ability to pay.7 The practice was dubbed “patient dumping.”8 The media regularly highlighted horror stories of patient dumping. Women in active labor were turned away from hospitals, losing their babies by the time they arrived at other facilities. Stab wound victims died while being transferred from private hospital emergency rooms to public hospitals. When public sentiment shifted, Congress responded by passing the Emergency Medical Treatment and Active Labor Act (“EMTALA”), which President Ronald Reagan signed into law in 1986.9 EMTALA applies to any hospital that receives Medicare funds and has an emergency department.10 When a person presents to an emergency room and there is a request for care, the hospital must conduct an appropriate medical screening, within the facility’s capabilities, to determine whether an emergency medical condition exists. Although the EMTALA statute does not define what an “appropriate medical screening” must include, it does require that it must be similar to one that would be provided to any other person, regardless of insurance status or ability to pay.11 The obvious public policy behind the law is to require hospitals to provide at least limited treatment to people who present to a hospital emergency room in active labor or with emergency medical conditions, regardless of their ability to pay. The purpose of the appropriate medical screening is to determine whether the patient has an emergency medical condition. The law defines an “emergency

medical condition” as one with “acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: (1) placing the health of the patient (or unborn child) in serious jeopardy, (2) serious impairment to bodily functions, or (3) serious dysfunction of any bodily organ or part. When a pregnant woman presents with contractions, it is an “emergency medical condition” if there is not enough time to make a safe transfer to another hospital before delivery, and such a transfer would pose a threat to the health or safety of the woman or unborn child.12 If the emergency physician becomes actually aware of an emergency medical condition, then it triggers a duty under EMTALA to provide treatment to stabilize the patient.13 This provision has been interpreted to be a subjective standard of actual awareness.14 Thus, the mere presence of an emergency medical condition is insufficient to support a claim under EMTALA, unless the actual physician awareness requirement is also met.15 Even after the duty to stabilize a patient is triggered by actual awareness of the emergency medical condition, EMTALA does not require the health care providers to cure the patient, but instead only to stabilize the patient’s condition. Under EMTALA, “stabilize” means “to provide such medical treatment of the condition16 as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or with respect to a woman in active labor to deliver (including the placenta).”17 Once the patient’s emergency medical condition is stabilized, the patient may be discharged or transferred to another facility. In addition, the hospital may discharge the patient before he or she has been stabilized, if: (1) the patient requests the transfer, (2) a physician certifies in writing and believes that the benefits of transfer outweighs the risk, or (3) when a

physician is not physically present in the emergency room, a qualified medical person certifies in writing and believes that the benefits of transfer outweighs the risk after consulting with a physician.18 The law contains serious enforcement provisions to incentivize Medicare-receiving hospitals to comply with EMTALA’s provisions. First, both hospitals and physicians who sign a certification under the EMTALA statute can be assessed civil penalties of $50,000 per violation.19 This means that hospitals and health care providers must pay careful attention to the statutory requirements for stabilization. Second, there is also a private cause of action against hospitals for EMTALA violations.20 A patient lawsuit under EMTALA is different from a medical malpractice claim (although sometimes they are pursued concurrently) in that an alleged EMTALA violation focuses on the “patient dumping” aspect of the facts. In summary, EMTALA has done a great deal to prevent patient dumping when bona fide emergency medical conditions are present. In general, if a hospital accepts Medicare, a person who has no insurance or ability to pay has certain rights, including delivery of a baby if the mother is in active labor, or treatment to stabilize an emergency medical condition. EMTALA is believed to have contributed to the increase in demand for emergency medical care, but does not address the broader issue of access to care for the uninsured, or underinsured, for primary care and non-emergency health care. Texas Law’s Approach to Emergency Medicine Providing health care to the uninsured continues to be a challenging topic of debate in Texas. According to 2009-2010 data, there are nearly 4.9 million uninsured people in Texas, which amounts to one-third of the population.21 Moreover, Texas ranks first of all U.S. states in the percentage of citizens lacking medical insurance.22 The noninsurance crisis has impacted

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January/February 2013

emergency rooms all over Texas, and the financial impact is significant. The Texas Medical Association estimates that Texas hospitals spent around $208 million treating uninsured trauma patients in 2003.23 The Texas legislature responded to the strains on the emergency medicine system by passing tort reform protections. The 2003 Texas tort reform legislation enacted a significant new protection for providers of “bona fide emergency care services.” The most dramatic change ushered in by the statute was the abrogation of the general negligence standard in favor of a lower standard of care for “bona fide emergency care services”: the standard of willful and wanton negligence.24 The willful and wanton negligence standard applies in hospital emergency rooms, hospital obstetrical units or in surgical suites immediately following evaluation in an emergency room.25 The effect of the statute is to create a lower standard of care for the provision of emergency medical care.26

While the term “willful and wanton negligence” has been considered inherently contradictory, “it is obvious the legislature meant to exclude outrageous acts rising to the level of conscious indifference.”27 The First Court of Appeals has interpreted willful and wanton negligence to be equivalent to gross negligence, writing that it means an “entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the right[s] or welfare of the person or persons to be affected by it.”28 It is important to note, however, that the willful and wanton negligence standard does not apply across the board in emergency room care. The distinction rests on the statutory definition of “bona fide emergency care services,” which seems to have been inspired by the language found in EMTALA. Texas law defines “bona fide emergency care services” as those “provided after the sudden onset of a medical or traumatic condition itself by acute symptoms of

alternative dispute resolution MEDIATION, ARBITRATION, SPECIAL JUDGE

sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ.”29 To sum up the effect of EMTALA and Texas law, if a person with an emergency medical condition presents to a Texas hospital emergency room (and the hospital accepts Medicare), the hospital must provide treatment to stabilize the emergency medical condition, but is not obligated to cure it. Any health care liability claim arising from the provision of that care would be subject to the standard of willful and wanton negligence, rather than the usual general negligence standard. Robert W. Painter is a trial lawyer with Painter Law Firm PLLC, where he handles medical malpractice matters for plaintiffs. He is an associate editor of The Houston Lawyer. Endnotes 1.

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As access to health care has become increasingly challenging, more and more people are relying on emergency rooms for emergency and non-emergency health care. In 2009, there were over 136 million visits to emergency rooms in the United States. That amounts to an increase of 28 million annual visits since 2000. See National Hospital Ambulatory Medical Care Survey: 2009 Emergency Department Summary Tables, Centers for Disease Control and Prevention (2012), http://www.cdc.gov/nchs/data/ahcd/nhamcs_ emergency/2009_ed_web_tables.pdf; Centers for Disease Control and Prevention, Advance Data from Vital and Health Statistics, No. 326 (April 22, 2001), available at http://www.cdc.gov/nchs/data/ad/ad326. pdf. Out of 136.1 million patient encounters, 21.1 million patients had no insurance, 39.9 million were covered by Medicaid or the Children’s Health Insurance Program and 23.1 million were covered by Medicare. See Centers for Disease Control and Prevention, Advance Data from Vital and Health Statistics, No. 326 (April 22, 2001), Table 6, available at http://www.cdc. gov/nchs/data/ad/ad326.pdf. U.S. General Accounting Office, Hospital Emergency Departments Crowded Conditions Vary Among Hospitals and Communities, GAO-03-460 (2003), available at http://www.gao.gov/new.items/d03460. pdf. Begley CE, Vojvodic RW, Seo M, Burau K, Emergency Room Use and Access to Primary Care: Evidence from Houston, Texas, 17 J. HEALTH CARE POOR UNDERSERVED 610 (2006), abstract available at http://www.ncbi.nlm.nih.gov/pubmed/16960325. Peter Cunningham, Nonurgent Use of Hospital Emergency Departments, Statement Before the U.S. Senate Health, Education, Labor and Pensions Committee, Subcommittee on Primary Health and Aging, May 11, 2011, available at http://hschange.org/

CONTENT/1204/1204.pdf. Peter Cunningham and Jessica May, Insured Americans Drive Surge in Emergency Department Visits, Issue Brief No. 70, Center for Studying Health System Change, Washington, DC (October 2003), available at http://www.hschange.com/ CONTENT/613/. 7. Andrew J. McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 WAKE FOREST L. REV., 173, 173-237 (1989), citing Ansell & Schiff, Patient Dumping: Status, Implications, and Policy Recommendations, 257 J.A.M.A. 1500 (1987). 8. Andrew J. McClurg, Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping, 24 WAKE FOREST L. REV., 173, 173-237 (1989). 9. 42 U.S.C. § 1395dd. The Act is also known as COBRA and the Patient Anti-Dumping Law. 10. 42 U.S.C. § 1395dd(a); Rios v. Baptist Mem’l Hosp. Sys., 935 S.W.2d 799 (Tex. App.— San Antonio 1996, writ denied). 11. C.M. v. Tomball Reg’l Hosp., 961 S.W.2d 236, 241 (Tex. App.—Houston [1st Dist.] 1997, no writ). 12. 42 U.S.C. § 1395dd(e). 13. 42 U.S.C. § 1395dd(e). 14. Camp v. Harris Methodist Fort Worth Hosp., 983 S.W.2d 876, 880 (Tex. App.—Fort Worth 1998, no pet.); Cleland v. Bronson Health Care Group, 917 F.2d 266, 269 (6th Cir. 1990). 15. Camp, 983 S.W.2d 880. 16. Id. 17. 42 U.S.C. § 1395dd(e)(3)(A). 18. 42 U.S.C. § 1395dd(c). 19. 42 U.S.C. § 1395dd(d)(1). 20. 42 U.S.C. § 1395dd(d)(2). 21. The Uninsured in Texas, Texas Medical Association, available at http://www.texmed. org/Uninsured_in_Texas/ 22. See id. 23. See id. 24. TEX. CIV. PRAC. & REM. CODE § 74.153 (Vernon 2005). 25. TEX. CIV. PRAC. & REM. CODE § 74.153 (Vernon 2005). 26. Jackson v. Axelrad, 221 S.W.3d 650, 655 (Tex. 2007); Hernandez v. Lukefahr, 879 S.W.2d 137, 141 (Tex. App.—Houston [14th Dist.] 1994, no writ). 27. Hernandez, 879 S.W.2d at 141. 28. Little v. Needham, 236 S.W.3d 328, 334 (Tex. App.—Houston [1st Dist.] 2007, no pet.). 29. TEX. CIV. PRAC. & REM. CODE § 74.153(a)(7) (Vernon 2005). 6.

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January/February 2013

By Amy R. Parsons and Judge Rory R. Olsen

Emergency Mental Health Care: How to Navigate in Harris County

ou receive a call from your client who is in a panic about her son, Charlie. She tells you that Charlie has bipolar disorder and has not been taking his medication. He is refusing to eat, drink, or bathe and mumbles something about “all going to die.” What do you tell your client to do to get the sick person treated quickly and safely? It is time to research. Which court has jurisdiction? What law applies? How does the law work? Probate Court No. 3 has primary responsibility for mental illness proceedings in Harris County.1 Probate Court No. 4 has secondary responsibility.2 Probate Court No. 3 has staff at the Harris County Psychiatric Center (“HCPC”) located at 2800 S. MacGregor Way, Houston, Texas, to handle administration of the 625 aver-

age monthly mental health applications.3 Texas Health and Safety Code Sections 573 and 574 provide three alternate ways a person can be brought into the mental health system for evaluation.4 The person can be brought into a mental health facility by either their guardian or by a peace officer. Also, any adult who has witnessed a mentally ill person exhibiting dangerous behavior may file an application to have the person apprehended.5 If the person is actively homicidal or suicidal, DO NOT WASTE TIME... CALL THE POLICE! This option is available 24 hours a day. When you call 911, request a Crisis Intervention Team (“CIT”) officer from the Houston Police Department’s (“HPD”) Mental Health Unit. These HPD officers are specially trained in techniques allowing for safe detention and transport of a mentally ill citizen.6 However, any peace officer can take a person to the nearest mental health facility for evaluation when he believes there is not enough time to obtain a warrant.7 The peace officer can do so when he reasonably believes that because of a mental illness, there is a substantial risk of serious harm to the person or others unless the person is immediately restrained.8 The officer can take custody of your client’s son solely from information she provides or from the circumstances surrounding his encounter with the son.9 You can reassure your client that Charlie will be taken only to a designated mental health hospital— not jail—as the officer can transport him to jail only under an extreme emergency.10 A second less traumatic transport is realistic in some situations. If your client is the court-appointed guardian of the person of her adult child (“ward”), she can transport him directly, without peace officer assistance or a warrant, to HCPC or any of the local mental health facilities for evaluation.11 Your client can take Charlie for in-patient evaluation when she has the same concerns as the officer.12 She can also transport Charlie if he demonstrates behavior, emotional distress and deterioration in his mental condition so that he cannot remain at liberty.13 This option

is also available at any time of the day. Having a familiar family member/guardian take him to the hospital reduces the amount of stress on the mentally ill ward. Either the officer or the guardian, upon arrival, must immediately file an application for emergency detention with the facility.14 Third, ANY adult, regardless of his or her relation, who has witnessed the mentally ill person acting in a dangerous manner, may apply for emergency detention of that person.15 This option is available during regular court business hours. The application should be filed with the county clerk/court at HCPC and must include the person’s location and clear details of what he has said or done that causes concern for his or others’ safety.16 Examples of granted applications are “my brother is hallucinating that I am the devil and threatened to kill me” or “my brother is bipolar and has not eaten or bathed in three days and is refusing medications.” Examples that won’t meet the code’s standard are “my brother is not following directions” or “my brother is agitated.” Prepare your client to be at HCPC for a few hours while the clerk/court processes the application for the judge’s review.17,18 During regular business hours, a statutory probate judge or associate judge reviews and signs the warrants.19 After hours, an assigned magistrate reviews and signs the warrants.20 Upon review of the application and finding that Charlie’s behaviors are a substantial, imminent risk to himself or others unless he is immediately restrained, the judge or magistrate will issue a warrant to an onduty peace officer.21 In Harris County, the majority of warrants are served by select Precinct One constables, who are housed at HCPC. Usually, within a few hours the constables will locate, take into custody and transport Charlie to the identified hospital for treatment. Regardless of how Charlie arrived, he initially can be detained in the mental health facility for only forty-eight hours and must be examined by a physician within the first 12 hours.22 If the physician feels that Charlie needs in-patient

treatment, then he must file with the court a statement describing how Charlie’s mental illness is causing him and/ or others imminent risk of harm and that immediately detaining him in the hospital is the least restrictive means for treatment.23 If the judge is convinced that a substantial risk does exist, then he may sign the order of protective custody (“OPC”) and Charlie will either remain in or be transported to the appropriate mental health facility.24 However, Charlie does have several rights during this time, including the right to notice of the detention and to have access to and retain an attorney.25 When an OPC is signed, the court is required to appoint an attorney to represent any patient who does not already have one.26,27 An attorney is appointed by each probate court to represent all patients appearing on that week’s docket.28 The attorney represents the patient from the probable cause hearing through the final court-ordered mental health/medication hearings.29 All mental health dockets are prosecuted by the county attorney’s office.30 In Harris County, the assigned assistant county attorney is Melinda Brents, who can be reached at (713) 741-6016. A hearing must be held within 72 hours of the OPC to determine if there is probable cause (“PC”) that Charlie is at risk and must remain in the hospital pending the outcome of the final court-ordered mental health hearing.31 Charlie and his attorney shall receive written notice stating he has been placed under a protective custody order, the grounds for the order, and the time and place of the PC hearing.32 The PC dockets are heard at HCPC on Mondays, Wednesdays and Fridays. Charlie, through his attorney, can challenge any evidence alleging the need for him to remain in the hospital.33 But if the court signs the order for continued detention, determining that he is at risk to cause harm to himself or others, he will stay in the hospital pending the remaining proceedings.34 If the physicians evaluating Charlie determine that he needs treatment, then

an application for court-ordered mental health services will be filed by the county attorney’s office.35 The law requires that court-ordered mental health services hearings (“final hearing”) will be held within 14 days of the filing of the application.36 The court may grant one or more continuances upon a good cause motion/ agreement, but the continuances may not extend later than 30 days from filing of the application.37 Final hearings are heard at HCPC on Mondays and Fridays. At the final hearing, Charlie has the right to notice, to be present, to be on the record and to be heard by a jury.38 However, most cases are bench trials. At the final hearing, upon reviewing the certificates of medical examination39 and the oral testimony of at least one physician, if the judge finds by clear and convincing evidence that Charlie is mentally ill and is (1) likely to cause serious harm to himself or to others or is suffering severe and abnormal mental, emotional, or physical distress; (2) is experiencing deterioration in the ability to function independently or to provide for basic needs; or (3) is unable to make a rational and informed decision regarding treatment, then the judge will sign the order committing Charlie for treatment.40 Psychotropic medications, imperative for improved mental status, are occasionally refused by the patient. A guardian can consent for the hospital to require the administration of psychotropic medications, without a court order.41 If the patient is not under a guardianship, then a separate hearing following the final hearing must be held for the court to require a patient to take psychotropic medications.42 The medication hearings are typically heard immediately following final hearings.43 Charlie’s rights are the same as in the final hearing and the court will orally notify him of the ruling.44 In medication hearings, the court will consider Charlie’s preferences, religious beliefs, and perspective of the risks and benefits of taking the medication.45 The court also considers Charlie’s prognosis, the consequences with and without

thehoustonlawyer.com

January/February 2013

the medication and any lesser intrusive treatments to psychotropic medications.46 If the testimony and medical evidence show by clear and convincing evidence that Charlie lacks the capacity to consent and it is in his best interest, the court will sign an order allowing the facility to force the administration of psychotropic medications.47 Charlie will then receive in-patient treatment, not to exceed 90 days, until the doctors believe he will not harm himself or others.48 However, he

does have the right to appeal the final and forced medication hearing.49 Keep in mind that the forced medication order does not follow Charlie upon discharge and is only applicable while the order of commitment is in effect.50 So, once Charlie has been treated and discharged, if he experiences another psychotic break, your client will have to start the process all over again. However, you are now armed and ready with advice on how to help Charlie. Godspeed, Charlie.

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July/August 2012

thehoustonlawyer.com

Amy R. Parsons is staff attorney for Harris County Probate Court No. Three. Ms. Parsons was employed by the Harris County Guardianship Program for eight years. She then worked as Probate Court No. Three’s court investigator for seven years before serving as a staff attorney. She is also a licensed master social worker and holds a nationally certified guardian certification. The Honorable Rory R. Olsen is Judge of Harris County Probate Court No. Three. Endnotes

TEX. GOV’T CODE ANN. § 25.1034 (Vernon Supp. 2004). Id. Id. TEX. HEALTH & SAFETY CODE ANN. §§ 573 & 574 (Vernon 2010). 5. Id. §§ 573.001, 573.003, 573.011. 6. To learn more call (713) 971-4620 or visit http://www. houstoncit.org/. 7. TEX. HEALTH & SAFETY CODE ANN. § 573.001 (Vernon 2010). 8. Id. 9. Id. 10. Id. 11. Id. at § 573.003. 12. Id. 13. Id. 14. Id. at §§ 573.002 & 573.004. 15. Id. at § 573.011. 16. Id. 17. TEX. HEALTH & SAFETY CODE ANN. § 573.012 (Vernon Supp. 2010). 18. For a list of mental health facilities in Harris County, contact the court at HCPC at 713-741-6020. 19. TEX. HEALTH & SAFETY CODE ANN. § 573.012 (Vernon Supp. 2010). 20. Id. 21. Id. 22. TEX. HEALTH & SAFETY CODE ANN. § 573.021 (Vernon 2010) & § 574.022 (Vernon Supp. 2010). 23. TEX. HEALTH & SAFETY CODE ANN. § 573.021 (Vernon 2010). 24. TEX. HEALTH & SAFETY CODE ANN. § 573.012 (Vernon Supp. 2010). 25. TEX. HEALTH & SAFETY CODE ANN. § 573.025 (Vernon 2010). 26. Id. at § 574.024. 27. Patients who hire their own attorney make up less than one percent of the docket. 28. TEX. HEALTH & SAFETY CODE ANN. § 574.003 (Vernon 2010). 29. Id. 30. Id. at § 574.001. 31. Id. at § 574.025. 32. Id. at § 574.024. 33. Id. at § 574.025. 34. Id. at § 574.026. 35. Id. at § 574.001. 36. Id. at § 574.005. 37. Id. 38. Id. at §§ 574.006, 574.031, 574.032. 39. By the date of the hearing, there must be on file at least two sworn certificates of medical examination for mental illness completed by different physicians, each of whom has examined Charlie during the preceding 30 days. 40. TEX. HEALTH & SAFETY CODE ANN.§§ 574.031, 574.034, 574.036 (Vernon 2010). 41. Id. at § 574.103. 42. Id. at § 574.106. 43. Id. 44. Id. at § 574.105. 45. Id. at § 574.106. 46. Id. 47. Id. 48. Id. at § 574.034. 49. Id. at §§ 574.070 & 574.108. 50. TEX. HEALTH & SAFETY CODE ANN. § 574.110 (Vernon Supp. 2010). 1. 2. 3. 4.

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July/August 2012

By Farrah Martinez

Harris County Therapeutic Courts:

A Holistic Approach to Justice

arris County, like many counties across the country, is working actively to address the health issues that plague the court system and impact the revolving door to the courts. Mental illness and drug addiction are two very serious health conditions that challenge our courts, increase the countyâ&#x20AC;&#x2122;s jail population and utilize a vast amount of financial resources. While the two conditions are distinct and each offers its own set of unique challenges, many of those individuals diagnosed with a serious mental illness often struggle with drug addiction. People diagnosed with mental illness or drug addiction are also more likely to recommit crimes if the underlying mental condition is not treated adequately. In 2009, approximately 25 percent of the Harris County jail population received psychotropic medications.1 Recent studies indicate the number of inmates diagnosed with a mental illness continues to rise.2 In 2009, the Mental Health and Mental Retardation Authority of Harris County (MHMRA) reported that 25 percent of the inmates housed in the Harris County Jail were mentally ill, and the cost to treat those mentally ill patients during that fiscal year was approximately $87 million.3 According to the Mental Health America of Greater Houston (MHA), the Harris County jail is the largest unofficial psychiatric center in the state of Texas.4 Solutions to Lack of Mental Health Care and Drug Addiction Over the past decade, Harris County has implemented five types of therapeutic courts that focus on bridging the gap of therapeutic approaches, justice and legal remedies. Those courts include: Star Drug Court, Infant and Toddlers Court, Veteransâ&#x20AC;&#x2122; Court, Felony Mental Health Court and SOBER Court. These courts aim to reduce recidivism, provide an opportunity for treatment, reduce costs, and produce confidence and safety within the community.

Star Drug Court—Criminal Courts The Success Through Addiction Recovery (STAR) program aims to build the community’s confidence in the criminal justice system by using a more effective approach of intervention and altering the perception of addiction. STAR’s four dockets handle more than 140 clients each year. The participants are indentified as non-violent repeat drug offenders, and the goal is to assist those participants in overcoming serious drug addictions. As a part of the program, the defendants receive intensive individualized supervision by court staff and treatment providers. Participants are required to appear frequently before their judge, submit to random drug screening, attend a 12-step program and agree to participate in group and individual treatment and counseling programs. STAR not only provides the tools needed to overcome addictions, it provides participants the opportunity to achieve educational, employment and social goals. Currently, Justice Jeff Brown, Judge Vanessa Velazquez, Judge Bill Burke and Judge Denise Bradley each preside over one of the four dockets. Graduates of the STAR Drug Court program have reached at least six months of sobriety and are either employed or enrolled as full-time students. Star Drug Court—Infant Toddler Court Family Intervention Court (FIC/ITC) The Family Intervention Court began in 2004 and is the only family drug court in Harris County. Judge Bonnie Hellums and Associate Judge Meca Walker preside over the current FIC/ITC docket. FIC’s vision is productive parents supporting healthy children emotionally and financially. Participants of the program are parents who have had children removed from custody due to physical abuse or neglect, or noncustodial parents who failed to comply with court orders and face the potential of incarceration. Eligible participants must have a substance abuse problem, agree to participate in the program and be identified as a non-violent offender. Participants also must not have an acute mental health disorder that would prevent treatment. As the program has evolved, it is often referred

to as the Infant Toddler Court. Priority number one is still the safety of the child; but now a greater emphasis is placed on providing the youngest children involved in these cases an opportunity to bond with their parents to offset the negative effects of removing a child from his or her family at such a young age. Parents can take advantage of a wide range of treatment services: detoxification, residential treatment, outpatient care, aftercare, individual counseling and family and couples counseling. The program also seeks to provide parents with ancillary services such as employment training, parenting skills enhancement, anger management education, social/life skills training, literacy training and transportation services to help them achieve life-long success. Participants generally spend 12 to 18 months completing the program, and participants receive random drug tests throughout all phases of the program. Veterans Court In 2009, Harris County developed the Veterans’ Court. Its mission is to increase access to mental health and addictions treatment for those veterans charged with criminal offenses by diverting participants to treatment to reduce jail time, costs and criminal recidivism, and to improve mental health recovery and successful re-entry into the community. Judge Marc Carter presides over the Veterans’ Court Program and collaborates closely with the U.S. Department of Veterans Affairs (VA) as well as many government agencies and community partners to provide treatment and myriad services and assistance to veteran participants. To be eligible, a participant must have received an honorable or general discharge, be on active duty or a member of the reserves, have a pending eligible felony offense, be a legal resident or citizen of the United States, have a mental health condition, traumatic brain injury and/or substance use diagnoses that is related to the criminal offense, be eligible for VA services, and be a first-time offender and/or have served in combat or hazardous duty. Vet-

erans charged with sexual offenses, drug delivery or any offense listed under Texas Code of Criminal Procedure Article 42.12 Section 3g, with the exception of aggravated assault, are ineligible to participate. All participants must admit guilt to the criminal offense and are required to submit to a clinical evaluation to confirm that their criminal offense is related to mental illness or substance use. The program’s success has gained national attention and was recently featured on CBS’s 60 Minutes. Mental Health Court In April 2012, the Felony Mental Health Court (FMHC), the most recent addition to the assortment of therapeutic courts in Harris County, accepted its first participant. Like the other therapeutic courts, there is no shortage of qualifying participants. Judge David Mendoza and Judge Brock Thomas currently preside over the FMHC, and participants are referred to the program by other courts, attorneys, and the FMHC Project Director. Qualified participants are non-violent felony offenders with a mental illness, who are legally competent. Additionally, a correlation must exist between the mental illness and the behavior displayed in the criminal charge. The participants must submit to a clinical evaluation and intensive mental health treatment; and if necessary, must participate in substance abuse treatment and agree to all other terms of probation. The FMHC’s primary purpose is to ensure public safety and reduce recidivism while diverting defendants with a mental illness from incarceration to appropriate treatment and community resources. If a candidate is excluded from the program, the referring court or attorney receives a written explanation indicating the reason for the denial and the candidate is generally referred to a more appropriate specialty court. SOBER—Saving Ourselves By Education & Recovery SOBER Court is a DWI Court developed by the Harris County Criminal Courts at Law to increase public safety, reduce long-

thehoustonlawyer.com

January/February 2013

term costs to the criminal justice system and protect the safety and welfare of the community. The SOBER program operates a judicially supervised court docket currently overseen by Judge Robin Brown, Judge Natalie Fleming and Judge Diane Bull. As part of the program, participants are required to undergo intensive alcohol and/or drug counseling and each participant frequently appears in court before the judge for review of the participant’s progress. Participants are also regularly and randomly tested for alcohol and drug use. The Harris County Criminal Courts at law, the District Attorney’s Office, the defense bar, the Community Supervision and Corrections Department, the Harris County Sheriff’s Department, substance abuse treatment providers and a host of social service agencies across Harris County work together to support the program’s continuation and success. SOBER Court’s goal is to break the cycle of addiction, reduce the number of repeat DWI offenders, promote and enforce abstinence from alcohol and drugs, provide intensive and effective treatment and rehabilitation and hold offenders accountable for their criminal conduct. Conclusion Harris County therapeutic courts are striving to identify and treat the health conditions that induce criminal behavior. They are fulfilling a growing need to combine justice with treatment of serious mental illnesses and drug addiction to reduce jail time or deflect incarceration and to reduce recidivism. Farrah Martinez is the Director of Legislative Affairs at the Harris County District Clerk’s Office. She is also a member of The Houston Lawyer Editorial Board. Endnotes 1.

2. 3. 4.

January/February 2013

thehoustonlawyer.com

W. Schnapp, J. Burruss, S. Hickey, K. Mortensen & P. Raffoul, The Consequences of Untreated Mental Illness in Houston: A Report of the Mental Health Policy Analysis Collaborative of the Health of Houston Initiative of the University of Texas School Public Health, 11 (September 2009), available at http://med. uth.tmc.edu/departments/psychiatry/mentalhealthanalysis/ untreated_illness.pdf. Id at 12. MHMRA Overview of Mental Disorders, available at http:// www.mhmraharris.org/AgencyNews.asp. Schnapp, supra, at 25, n.1.

Houston Lawyers Who Made a Difference

Hortense Ward

lawyer who wants to make a difference must sometimes show the courage to risk a career for the sake of doing the right thing. This often means breaking stereotypes. No better example of a lawyer who did that exists than Hortense Ward. She devoted her life, and risked her law practice, to become an active advocate for justice. Ward started her career as a schoolteacher, and became interested in the law while serving as the Court Reporter of the 55th District Court in 1903. She passed the bar in 1910 and, at the age of 38, became the first woman attorney in Texas. She soon found her greatest skills to be a writer and speaker. In 1913, she drafted and lobbied successfully for the “Married Women’s Property Law,” which gave women the power to bring lawsuits, sign contracts and manage their separate property. For the balance of the

By Judge Mark Davidson

pro-KKK judge was decade, she was a national speaker and a local elected. leader for the effort to allow women’s suffrage. She was born Her reward came on June 27, 1918, when she with a gift of speech, was the first woman to register to vote in Harand used it as a ris County. means of achieving In 1926, she showed great courage in her justice for women efforts to fight the Ku Klux Klan. The Klan was and stopping inattempting to take over the judicial system of justice in its most Harris County. They had been successful in insidious form. For several races in the 1924 Democratic Primary, our mothers, sisters, and the 1926 election was a pitched fight be- Hortense Ward and daughters, as well as for our community at tween the Klan and the “Citizens Democratic large, she made a difference. League.” Risking her career in the event of a Klan sweep, she spoke out against their candidates for office, and organized rallies in neighThe Hon. Mark Davidson is an MDL judge borhoods all around Harris County. Newspaper and judge (retired) of the 11th District Court. accounts of the day show her speaking night His column for The Houston Lawyer focuses after night, imploring people to vote against on Houston attorneys who have had signifi“intolerant secret societies.” Her efforts were cant impact on the law, the legal profession largely (but not entirely) successful – only one and those served by the law.

Estate, Trust and Guardianship Litigation

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Since 1999, Don Ford and Ford+Mathiason LLP have served clients throughout Texas with complex estate, trust, and guardianship litigation needs. More recently, those cases have involved significant commercial and oil & gas issues, requiring expertise in those areas. As the needs of our clients have evolved, the firm has called on the extensive expertise of Mr. Ford’s long-time colleague Richard F. Bergner in addressing commercial and oil & gas issues. Although our focus remains on estate, trust, and guardianship litigation cases, we appreciate the changing needs of our clients and the ability to offer them more comprehensive services. As a result, we are pleased to announce the firm’s new strategic partnership with Richard F. Bergner and the re-naming of the firm to Ford+Bergner LLP.

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1/9/13 3:59 PM

63rd Harvest Party Raises Record $613,900 for Houston Bar Foundation

he 63rd Harvest Party, co-sponsored by the Houston Bar Association, Houston Bar Association Auxiliary and Houston Bar Foundation, raised a record $613,900 in underwriting to benefit the Foundation, the charitable arm of the association. The event was held November 12 at River Oaks Coun- From left, Robert J. McAughan, 2012 chair of the Houston Bar Foundation; Brent try Club, with more than 1,000 Benoit, president of the Houston Bar Association; Christy Benoit; Ansley Buttram, HBA members and their guests president of the Houston Bar Association Auxiliary; and Stephen V. Buttram. in attendance. HBA Treasurer Carter Crow and Houston Bar Foundation Chair Robert J. McAughan served as event co-chairs. The Houston Bar Foundation is now in its 30th year of service to the legal community and the profession. The Foundationâ&#x20AC;&#x2122;s primary beneficiary is the Houston Volunteer Lawyers Program, which provides thousands of hours of pro bono legal representation to low-income Harris County residents each year.

Photos by Temple Webber Photography 34

January/February 2013

thehoustonlawyer.com

Attorneys from LyondellBasell turned out to support the Harvest Party

John Eddie and Sheridan Williams

TYLA President C.E and Daj Rhodes

Thomas M. Roche and his daughter, Kristen Hulbert

Muhammad Aziz and Sammy Ford IV

The Hon. Jane and Doug Bland

South Texas College of Law Dean Donald and Pat Guter

John Kim and Denise Mitchell

Pamela and Curtis Frasier thehoustonlawyer.com

January/February 2013

COMMITTEE SPOTLIGHT

HAY Center Committee Helping Youth Transition to Adulthood

By Angela L. Dixon

The Houston Lawyer

he HAY Center Committee was established in 2010 as a partnership with the Houston Bar Association. The HAY Center, a program of Harris County Protective Services, empowers youth ages 16-21 and alumni to become successful, productive citizens through much-needed services as they depart from Family and Protective Services. There are hundreds of thousands of children in foster care. In Texas alone, there are approximately 28,883 youth currently in foster care. In the Greater Houston community, 6,613 youth currently live in foster care, and almost 10 percent age out of the system each year, which means they come of age while still in the foster care system. In 2009, the HBA began providing speakers to the HAY Center’s PAL (Preparation for Adult Living) program education sessions. This speaker series has continued each bar year with a focus on landlord/tenant law, child custody, and juvenile law topics during the youth’s spring and summer breaks. In 2010-2011, HBA President Mark Kelly created a HAY Center Committee in order to expand the HBA’s work from providing speakers to planning day long training seminars for the staff case managers, helping juveniles seal and/or expunge their juvenile criminal records, and holding a drive to stock the supply “Ready Room” for youth going to college or transitioning to an independent living environment. The HBA also collects interview appropriate clothing and prom clothing for the HAY Center. The committee is co-chaired by Gregory Ulmer of Baker Hostetler LLP, Ellyn Josef of Vinson & Elkins LLP, and Lynn Kamin of Jenkins & Kamin, L.L.P. Each of the three committee co-chairs’ firms have become HBA HAY Center partners. In 2011-2012, the committee created subcommittees to plan three events: the Ready Room drive, Holiday Party, and Prom Event. Each event was a huge success. The Ready Room drive collected over 5,600 items and

January/February 2013

$4,530 in cash donations, which purchased The prom event was enjoyable as well. It play yards, diapers, strollers, and more. The was so exciting to see the young girls’ faces holiday party drive received $5,440 in cash light up when they tried on a dress that fit donations, $476 in gift cards, and many new them perfectly, and the young men filled toys, providing food, gifts, with pride that they would stockings, decorations, be looking very dapper and door prizes for 165 on prom day. My favorfoster youth and their own ite memory of the prom children who attended the event came when the stuparty. The prom event for dents were asked if they 26 high school seniors al- Meredith Clark, a HAY Center Committee were going out to dinner member, and Alyan Haidery, both of Winlowed the boys and girls to stead PC, assist with the holiday party. for the prom. All of them take home prom clothing responded no, but I knew and goodie bags and to rethat thanks to donations ceive valuable advice from from HBA members and area experts. friends, they were. At the As a part of the commitend of the event, all of tee, I attended the holiday the students were able to party which was held at the Ellyn Josef of Vinson & Elkins, co-chair of choose a gift card to an HAY Center and the prom the HAY Center Committee, helped make assortment of restaurants, the holiday party special for both HAY event which was held at Center youth and their children. and every one truly appreHouston Community Colciated it. lege. The foster youth and Additionally this year, their children were so exthe committee is focusing cited to attend the holiday on a record sealing proparty. One game that took gram that extends beyond place at the party encourjust HAY Center youth. aged the youth to mingle Shopping for dresses at the HAY Center The program will be availProm Event. and talk to staff and volable to all youth who unteers. I was inspired by qualify to have their first speaking to one young offenses or misdemeanor lady who had been in fosconvictions sealed. Volunter care since she was two teer attorneys were trained years old. She is over 18 in November by the Honnow, but still has a positive orable Judge Michael Learning how to tie a tie is part of helping outlook on life and her fu- young men look their best for prom. Schneider. ture and wants to help others who were in The committee welcomes donations for her same circumstances. According to Mary the Ready Room Drive and Prom Event. Green, the HAY Center director of transitionMembers can contact Bonnie Simmons at al living services, “The holiday party is the Bonnies@hba.org or call the HBA at 713-759only time youth are able to celebrate the holi1133 for more information. day as many have no family to spend it with. Some former foster youth have shared with Angela L. Dixon is an attorney with a civil us that even in the foster home they were not practice, focusing on wills and probate, landlord/ included in the holiday festivities with their tenant disputes, and personal injury law. She is foster family.” an associate editor for The Houston Lawyer.

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A Profile in professionalism

C.E. Rhodes U.S. Operations and Compliance Counsel, Baker Hughes Incorporated President, Texas Young Lawyers Association

ore than 20 years ago, at a time when many of today’s young lawyers were in elementary or middle school, The Texas Lawyer’s Creed – A Mandate for Professionalism was promulgated and adopted by the Supreme Court of Texas and the Court of Criminal Appeals. The creed was created to eliminate abusive tactics used by a minority of Texas lawyers that undermined the public perception of the profession and the interest of justice. The creed sets forth standards respecting the legal system, clients, colleagues, and the judiciary to which every Texas lawyer should be committed. It implores Texas lawyers to hold themselves and their peers to a standard above and beyond what is required by the Texas Disciplinary Rules of Professional Conduct. Every Texas lawyer is responsible for understanding and complying with the creed. Out of the creed’s 44 enumerated standards, perhaps it is no surprise that nearly half (43.1 percent) of the standards relate to the duties that lawyers owe to opposing counsel. We all have heard stories about, or had unfortunate experiences with, opposing counsel who have failed to act in accordance with the creed. Examples such as personal attacks in correspondence and pleadings, noticing depositions arbitrarily without any attempts to coordinate schedules with counsel, and purposefully waiting until the end of the business day to serve motions should not be the norm. In to-

day’s environment, where there is ever-increasing pressure to meet client demands and exceed expectations, lawyers may feel the need to take an unreasonable or overly aggressive position with opposing counsel in order to impress the client. Such tactics, however, have the opposite effect of impressing clients and actually diminish the public’s perception of lawyers. Zealous advocacy should not result in unprofessional conduct. Furthermore, when emotions run high between a client and an adversary, remember that we are paid to objectively view the facts and provide sage advice and counsel. If we allow our clients’ emotions to affect how we interact with opposing counsel, then our clients ultimately suffer, as needless bickering between counsel results in petty motions and unnecessary fees. When faced with unprofessional conduct, take the high road in both deeds and words – courts and juries tend to reward counsel who do so. At a time when public perception of lawyers is perhaps at an all time low, it is imperative that we carry forward the torch for professionalism. We must behave in a manner that is consistent with the established standards set forth in the creed and hold one another accountable to ensure compliance by our peers. We can only improve public perception of our profession if we work together to adhere to the highest level of ethical and professional conduct, as mandated by the courts. thehoustonlawyer.com

January/February 2013

OFF THE RECORD

Benny Agosto Jr. and Victoria Goes to Court By Polly Graham

overcome prejudice in Texas. So Benny became a lawyer and, in addition to maintaining a successful private practice, used his power to establish the Mexican American Bar Association of en year-old Victoria Agosto, co-author of a new chilTexas Foundation. The Foundation, which recently celebrated dren’s book about the legal system, gives her young its seventh annual awards luncheon, provides scholarships to readers some timeless words of advice: “Always follow students identified for their outstanding contributions to the your dreams.” To find the source of her inspiration Hispanic legal community. Benny also serves the HBA as first you need to look no further than her co-author and vice president and chair of the Dispute Resolution Center. father, Benny Agosto Jr. Benny is a named partner at the Houston Benny is a prolific writer who has authored dozens of articles law firm of Abraham, Watkins, Sorrels, Agosto & Friend and and speeches over the years. And immediate-past President of once again, he translates this talthe Hispanic National Bar ent into a way to help others. He Association. His accomplishcurrently serves the Hispanic ments are diverse, yet marked legal community as editor-inby two common attributes— chief of the Hispanic National success and compassion. Bar Association’s Journal of Law The story Benny created and Policy. He is also developing with his daughter is called a litigator’s guide to understandVictoria Goes to Court. It ing cultural and legal issues sigteaches children about the nificant to the Hispanic commupower lawyers have to fight nity and speaks with enthusiasm injustice in society. Victoria about the possibility of turning is a young girl who studies Victoria Goes to Court into a sehard. One day in school, she Nikki, Benny and Victoria Agosto at a book signing at the dedication ries of books aimed at educating learns how Dr. Martin Luther King Jr. encouraged people of the Randall O. Sorrels Legal Clinics at South Texas College of Law. children about other important aspects of the law. across the country to peacefully fight injustice. So Victoria asks Benny’s focus on helping others is readily apparent during even her teacher how she can make a difference in the world, and thus a short interview. When asked about his accomplishments, Benbegins a journey of discovery revealing how lawyers can help ny quickly turns the conversation to his own mentors and the solve problems and fight injustice in court. Benny self-funds the need to support promotion and advancement of women and mipublication of the book in English and Spanish and has given nority lawyers. He takes pride in discussing his four children and free copies to students from Texas to Virginia. The inspiring pauses a moment to answer their calls where he dispenses advice story even caught the attention of Supreme Court Justice Sonia with a healthy mix of high expectations. So when Benny reads Sotomayor, who autographed a copy to encourage its young coVictoria Goes to Court to young students across the country, they author. are faced with not only an inspiring story but also a true model Benny’s commitment to advancing the legal community began of how one lawyer can make a difference in the community. many years ago. After growing up in Puerto Rico, Benny moved to Texas where he started his career coaching collegiate soccer Polly Graham is an associate in the appellate section at and teaching microbiology. He quickly realized that he wanted Haynes and Boone, LLP and a member of The Houston Lawyer the power to influence broad scale changes, particularly those editorial board. that would benefit the Hispanic community as it struggled to

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January/February 2013

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at the bar JUDICIAL CEREMONIES

The Hon. Brad Hart was sworn in as judge of the 230th District Court on February 1 by the Hon. Stacey Bond, judge of the 176th District Court. He was joined by his children, Savannah and Hunter Hart; his parents, Linda and Robert Ragland; and his sister, Brook Baugh.

The Hon. Elizabeth Ray was sworn in as judge of the 165th District Court on January 31 by her daughter, Morgan Haenchen. They were joined by Judge Rayâ&#x20AC;&#x2122;s son, Jackson Haenchen.

The Hon. Brock Thomas was sworn in as judge of the 338th District Court on January 25 by the Hon. Michael McSpadden, judge of the 209th District Court. He was joined by his family, Trisha, Ryan and Zachary Thomas.

The Hon. Stacey W. Bond was sworn in as judge of the 176th District Court on January 24 by The Hon. Brock Thomas, judge of the 338th District Court. She was joined by her family, Benton, Braxton and Brynn Bond.

The Hon. Renee Magee was sworn in as judge of the 337th District Court on January 11 by the Hon. Elsa Alcala, justice, Texas Court of Criminal Appeals. She was joined by her children, Angela Stickline and Christopher Schirmer.

The Hon. Elaine Palmer was sworn in as judge of the 215th District Court on January 2 by the Hon. Zinetta A. Burney, Justice of the Peace, Pct. 7, Place 2, with Jacoby Hubbard holding the Bible.

A portrait of the Hon. Jacqueline Lucci Smith was unveiled on December 18 by her husband, Richard A. Smith, joined by Evelyn Grace and Rockford Alexander Smith. The portrait honored her service as judge of County Civil Court at Law #2 from January 2007 through February 2012.

The Hon. Wesley R. Ward was sworn in as judge of the 234th District Court on December 14 by the Hon. Bill Boyce, justice on the 14th Court of Appeals. He was joined by his family, Molly, Lily, Ava and Wylie Ward.

The Hon. Brett Busby was sworn in as justice on the Fourteenth Court of Appeals on September 4 by the Hon. Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit. He was joined by his wife, Erin Glenn Busby and children Katie and Will.

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January/February 2013

LEGAL TRENDS

The America Invents Act By Al Harrison and Derek Mueller

he recently enacted Smith-Leahy America Invents Act (“AIA”) has sought to harmonize U.S. Patent Law with long-standing worldwide patent protocols. After a nearly 60year hiatus, the new patent law was orchestrated to remove barriers to innovation that unnecessarily delayed American inventors from commercializing new products and creating jobs for American workers. Besides emphasizing a patent system that strives to expeditiously grant “good patents” and simultaneously precludes “bad patents,” the AIA has transformed the U.S. First-To-Invent basis for establishing patent rights into a First-to-File/First-To-Publish basis that has been and continues to be relied upon by all countries throughout the world. Nevertheless, this new patent procurement regime seems to behave more akin to a new and unique hybridized patent system rather than constituting a harmonized system. A brief summary of some of the more significant changes are highlighted below.

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Satellite Offices The AIA requires the U.S. Patent & Trademark Office to establish at least three satellite offices throughout the U.S. as determined by available resources. It is contemplated that this regional office infrastructure (Detroit, Denver, DallasFort Worth, Silicon Valley) will be in place by September 16, 2014 and will facilitate and foreshorten patent prosecution by enabling patent counsel and inventors to have local or regional access to patent examiners. First Applicant to File or Publish As of March 16, 2013, the AIA changes U.S. Patent procurement priority from a First-ToInvent system to a First-To-File system. Priority is accorded the first inventor or applicant to file, or to the first inventor to publicly disclose 40

January/February 2013

the invention who then files within one year. This new system precludes patentability of an invention if the invention has been described and claimed by another applicant in a patent or a patent application that has been filed based upon an effective date prior to the effective filing date of a later-filed patent application, or otherwise described in a printed publication written by a third party. Patentability Preclusion based upon Prior Art The AIA broadens patentability preclusion from within the U.S. to anywhere worldwide. More particularly, an inventor or other applicant is precluded from obtaining a patent if an invention has already been patented, been described in a printed publication, been on sale, been in public use or otherwise publicly available, anywhere worldwide, prior to the effective filing date of the implicated patent application. Similarly, patentability is precluded if an invention has been described in a U.S. patent or U.S. patent application publication filed by or on behalf of another inventor and having an effective filing date prior to the applicant’s filing date anywhere worldwide. Grace Period Formerly, there existed a one-year grace period during which an invention was not barred from patentability if the invention was disclosed in a printed publication anywhere in the world or if it was in public use or on sale in the U.S. Under the AIA, effective March 16, 2013, the one-year grace period has been reduced in scope to a “personal” grace period inasmuch as it is limited to disclosures by an inventor or to another individual who is privy to the inventor’s disclosure and effects such disclosure with the inventor’s authority. Accordingly, other subsequent disclosures not derived from such inventor’s disclosures constitute a statutory bar to patentability. Bad Faith Patent Application-Filing As a sword against a bad faith applicant who first-files a patent application based upon another party’s invention, the AIA establishes “Derivation Proceedings” effective March 16,

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2013. From the time that such a bad faith filing is effectuated, an actual inventor is afforded a one-year window during which to file a petition that the invention claimed in a later-filed patent application is the same or substantially the same as an earlier-filed patent application. This derivation-petition must be supported by substantial evidence that the claimed invention was derived from the actual inventor. In lieu of this inventorship issue being resolved via Derivation Proceeding before the Patent Trial and Appeal Board or being appealed to either district court or the Court of Appeals of the Federal Circuit, the parties may seek resolution through binding arbitration or settlement. Notwithstanding, a settlement will be rejected by the Patent Trial and Appeal Board if the settlement’s terms are inconsistent with the derivation-evidence of record. Third Party Challenges to Patentability Effective September 16, 2012, the AIA established new methodologies that enable a third party to affirmatively challenge: (1) the patentability of pending patent applications; and (2) the validity of a claimed and already-patented invention through administrative trial protocols heard by a newly-formed Patent Trial & Appeal Board (“PTAB”). These new procedures are intended to serve as cost-effective and time-efficient alternatives to district court litigation. To promote issuance of sound patents, the AIA established a Supplemental Examination protocol for a patentee to request that the PTO consider, reconsider or correct information believed to be relevant to an issued patent, thereby enhancing the integrity of the patent. Pre-Issuance Submission For published pending patent applications, a third party may submit prior art and other references to the U.S. Patent Office provided such submission occurs prior to the later of the first official substantive communication from a patent examiner addressing patentability (“Office Action”) or six months after publication of the patent application, and also assuming payment of prerequisite filing fee. The third party

LEGAL TRENDS

has the burden of elucidating the relevance of the prior art references to assure that the examiner has considered all relevant materials prior to assessing patentability. Patents, published patent applications, and other printed publications may be submitted for any reason. Interestingly, such a pre-issuance filing is not required to be served upon the applicant’s patent counsel, who should periodically check the electronic file-wrapper. Post Grant Review A third party may file a Post Grant Review petition within the first nine months of the issuance of a Patent Grant, with the objective of invalidating one or more of the claims. The challenged patent must emanate from a Firstto-File application that has an effective date subsequent to September 16, 2013. Such a petition may be filed by a third party so long as the third party has not already filed a civil action in federal district court based upon on a ground that challenges validity and enforceability of a patent claim — relying exclusively upon prior art patents and/or prior art printed publications. The petitioner has the burden to analyze and construe the scope of the implicated claim(s), to elucidate the grounds of unpatentability evidence, and to elucidate how the relevant written evidence “reads-on” the scope of the construed claims. The burden of proof corresponds to establishing that it is more likely than not that at least one challenged claim is unpatentable. Inter Partes Review As an option intended to function in conjunction with a Post Grant Review, Inter Partes Review enables a third party to petition the PTAB no earlier than nine months subsequent to the issuance of a Patent Grant but subsequent to termination of a Post Grant Review. An Inter Partes Review requests that an issued patent, regardless of whether filed on the basis of preexisting First-to-Invent or new AIA First-toFile protocol, with the objective to invalidate one or more of the challenged claims. The burden of proof corresponds to establishing that there is a reasonable likelihood that at least one

challenged claim is unpatentable, but solely on the basis of the claim being anticipated or obvious in view of petitioner’s cited patents and/ or printed publications. Akin to a Post Grant Review, an Inter Partes Review petition may be filed by a third party as long as the third party has not already filed a civil action in federal court based upon a ground that challenges validity and enforceability of a patent claim relying exclusively upon prior art patents and/or prior art printed publications. The petitioner has the burden to analyze and construe the scope of the implicated claim(s), to elucidate the grounds of unpatentability evidence, and to elucidate how the relevant written evidence reads-on the construed claims. Supplemental Examination Supplemental Examination enables a patentee to request the PTO to entertain submitted materials for the primary purpose of assuaging allegations of inequitable conduct that heretofore was frequently invoked by a third party to seek to invalidate an issued patent. Having the option throughout a patent’s life cycle, a patentee may seek the Supplemental Examination route to establish a safe harbor against potential allegations of inequitable conduct based upon conduct effectuated during prosecution of the underlying patent application. Materials submitted are not limited to patents or printed publications, but may include any item of information deemed by the patentee to be relevant to any patentability ground. The provisions of the AIA summarized above are just a few of the many changes implemented by the bill. As proponents and critics line up on either side of the new law, the effects of the bill remain to be seen. In any event, The America Invents Act represents the most significant change in U.S. patent law in decades. Al Harrison is a patent attorney practicing intellectual property law with the firm Harrison Law Office, P.C. He is a member of The Houston Lawyer Editorial Board. Derek Mueller is an attorney practicing law with the firm of Mueller & Mueller LLP.

The Numbers Show Success of Tort Reform Goals By Lynne Liberato and Kent Rutter

onventional wisdom holds that tort reform has worked to limit plaintiffs’ recoveries in tort cases. But is the conventional wisdom true? The statistics reveal that the answer is “yes.” More than nine years ago, we published our comprehensive study of reversals in civil cases in the Texas courts of appeals during the 2001-2002 court year. In 2012, we repeated our study using data from the 2010-2011 court year. A comparison of the two studies shows that tort reform measures enacted in the interim significantly darkened the outlook for plaintiffs in tort and DTPA cases, both at trial and on appeal. Filings and appeals: Tort reform measures enacted by the Legislature, as well as Texas Supreme Court decisions favoring tort defendants, appear to have discouraged some tort and DTPA plaintiffs from filing suit. According to the Office of Court Administration, between 2002 and 2010, the number of “injury or damage” cases filed in the trial courts fell by 12%. When lawyers do file personal injury cases, they are often hesitant to turn down a settlement offer and pursue the case to judgment. According to the Office of Court Administration, between 2002 and 2010, the number of “injury or damage” cases decided by summary judgment, jury trial, or bench trial fell by 25%. When tort and DTPA cases reach final judgment, plaintiffs are often hesitant to appeal an adverse result. The number of appeals from final judgments taken by tort and DTPA plaintiffs has plunged by 39% since the 2001-2002

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Continued on page 45 January/February 2013

Media Reviews

Business and Commercial Litigation in Federal Courts, Third Edition Robert L. Haig, Editor in Chief 2011 West, 12,742 pages

The Houston Lawyer

Reviewed by Jill Yaziji usiness and Commercial Litigation in Federal Courts, Third Edition, edited by Robert L. Haig, is a compilation of knowledge, experience and legal strategies of 251 of the nation’s most distinguished federal practitioners, including 22 judges. The Third Edition is eleven volumes, adding three volumes to the Second Edition, published in 2005. This expanded treatise is welcome: it updates the original chapters of the Second Edition and expands its reach to 34 new chapters, such as “Derivatives,” “Money Laundering,” and even “Medical Malpractice.” The eleven-volume Third Edition is astounding not only in its thematic reach, but also in the depth of its detail. Each chapter is equipped with practice tips, and many have forms that bring the concepts discussed to the fingertips of the user. In fact, a state court practitioner frustrated by the lack of comprehensive business and commercial forms may well turn to this edition and find its forms applicable—from contingent fee agreements and noncash settlements to fraudulent inducement, demand letters, and partnership litigation. Likewise, this edition adds checklists of allegations, defenses, client counseling sections, and jury instruction, all also included on a CD. Our own Texas litigators and judges contribute prominently to this epic endeavor, including 15 different authors and seven chapters, with Charles Babcock featuring 42

January/February 2013

one of the new chapters entitled, “Prior Restraints on Speech”—a riveting discussion of this constitutional doctrine and its applicability to the business context. Vincent Hess and John McElhaney coauthored the chapter on “Costs and Reimbursements,” rendering this relatively technical subject engaging and accessible. This strategy-filled chapter discusses how a prevailing party can recover costs, the applicable statutes allowing recovery of taxable costs, and various definitions of “prevailing” party, along with a comprehensive list of costs that may or may not be recoverable. Hess and McElhaney argue that seeking the court’s prior approval of items to be taxed or recovered at the outset of the case is not placing the cart before the horse, as many litigants suppose, but rather a wise practice supported by extensive case law. Stephen Susman and Barry Barnett co-authored the chapter on “Techniques for Expediting and Streamlining Litigation.” As a pioneer of high-stakes litigation conducted in an efficient and collegial manner, Susman has a winning record that would put to rest any argument that efficiency and collegiality may compromise a litigant’s advantage. The chapter imparts the common wisdom rarely used in litigation: “less is best”—that massive document productions often impede rather than enhance the evidence presented, and may hinder a party’s ability to surprise at trial. The authors advocate openness and cooperation to reduce the prohibitive cost and waste of litigation, sharing a “standard list of discovery” to opposing counsel, service of documents by email and on a rolling basis as soon as the documents become available, and even suggest allowing open file searches as long as privileges and confidential information are preserved. Two Texas federal judges contributed chapters to the treatise as well. Judge Barbara M. G. Lynn wrote the chapter on “Requests for Admissions” along with David Coale. This chapter richly and methodically lays out the law on this subject, analyzing the effects of poorly timed admissions requests,

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as well as the difference between substantive requests and those seeking to establish evidentiary matters. The chapter abounds with strategies and subtle distinctions between effective requests, often “short, clear, and suggest an obvious answer,” and requests that are ambiguous, thus lacking the desired “foreclosure” effect, even when admitted. The chapter turns the requests for admissions into a highly effective discovery tool, including establishing the ultimate issue in the case, to avoid expensive trial discovery. Judge David Hittner coauthored the chapter on “Jury Selection” along with David Beck and Eric J.R. Nichols. The authors emphasize the federal court’s wide discretion in (dis)allowing attorneys to conduct their own examination of the jury veneer, pointing out that two-thirds of the federal judiciary thinks that attorneys use voir dire for “inappropriate purposes.” With that perception, the authors discuss factors that encourage federal judges to allow the attorneys’ own examination of jurors, and cite examples of cases where the court’s failure to allow the parties to ask questions eliciting potential juror bias resulted in reversal. Particularly enlightening is the authors’ discussion of the important role of diplomacy in eliciting a reticent juror’s acknowledgement of his or her bias. In the highly constrained world of federal voir dire, the authors’ wisdom on this subject may be best gleaned from a quote by Clarence Darrow that a “large part of [an attorney’s] work is sizing up judges, jurors, and witnesses at the first glance.” The treatise’s broad jurisprudence and eminent practicality are interwoven with ethical considerations throughout. But “Ethical Issues in Commercial Litigation,” co-authored by Harry Reasoner, George Kryder and Edward Carr, specifically maps out the legal ethics maze of complex litigation and ways to navigate it. Another Texas attorney, Blake Tartt, along with Bruce Wilkin, provides the first chapter, comprehensively treating the authority of federal courts to hear any case in “Subject Matter Jurisdiction.”

Media Reviews

Business and Commercial Litigation in Federal Court, Third Edition is a composite of jurisprudence and data points. For example, a footnote in chapter 55 on “Appeals to the Courts of Appeals” takes the reader to U.S. court of appeals statistics website, where the she will quickly learn that the number of private cases filed in the Fifth Circuit in 2011 was the second largest in the nation, or that the number of immigration cases involving alien smuggling in the Fifth Circuit in 2011 was the largest in all federal circuits, and almost twice the number of those in the Ninth Circuit. No review, short or long, can adequately describe the contributions of these stellar practitioners or the time expended by the editor-in-chief in assembling them together. The outcome is packed equally with authoritative legal analysis and hands-on practical tips, and is universally applicable to the business litigation practitioner, in state or federal court. Jill Yaziji is is the principal of Yaziji Law Firm, a firm specializing in civil litigation. She is an associate editor of The Houston Lawyer.

Reading Law: The Interpretation of Legal Text By Justice Antonin Scalia & Bryan A. Garner, Thomson/West, 2012

Reviewed by Jeffrey L. Oldham hat do you expect when you see a book about interpreting legal texts that is co-written by a U.S. Supreme Court Justice renowned for his interpretive skills, and a lexicographer who has edited Black’s Law Dictionary and authored highly regarded books about legal writing?

An authoritative and comprehensive treatise that is likely to be a staple of many lawyers’ bookcases. And that is exactly what Justice Antonin Scalia and Bryan Garner have delivered with Reading Law: The Interpretation of Legal Texts. The most obvious contribution of Reading Law is its incomparable collection of principles for interpreting legal language. The book is in this sense a classic treatise: it identifies and explains 37 canons of interpretation applicable to all legal texts—whether a contract, a statute, or other legal text—and then does the same for 20 additional canons that are specific to statutory interpretation. In characteristic Justice Scalia fashion, the book closes with 13 other notions that the authors believe are misguided. For each principle, Justice Scalia and Mr. Garner provide an explanation and examples of proper usage—and for many canons, they offer much more. Some of these descriptions are steeped in technical grammar rules; others include discussions about originalism or other important topics. The collection is therefore not just a useful reference guide to have close by when an interpretation question arises; rather, it is an engaging treatise about the principles of interpretation and legal writing and theory in general. The book is a must-have for any lawyer, law student, or citizen who wants a primer on legal interpretation and writing. But Reading Law is as much an argument about how to interpret legal texts as it is a catalogue of the tools for doing so. Not surprising to anyone familiar with the work of Justice Scalia, the book advocates textualism as the proper method for interpreting legal texts. The book’s lengthy introduction conceptualizes the proper role of a judge when interpreting a written text—to determine and apply the text as written according to its definite and ascertainable meaning, using the proper interpretive tools—and then argues that a “fair reading” textualism is the best method for performing that role. It also rebuts criticisms of this method and some competing theories of interpretation. The

authors end the book with a lengthy section on interpretive falsities, many of which underscore the arguments in favor of textualism and against competing modes of interpretation. For instance, in criticizing an alternative theory of interpretation that they call “purposivism,” the authors note that this approach allows a foray into the use of legislative history (which Justice Scalia famously abhors), and they complain that “[t]he purposivist, who derives the meaning of text from purpose and not purpose from the meaning of text, is free to climb up th[e] ladder of purposes and to ‘fill in’ or change the text according to the level of generality he has chosen.” This sentiment returns when Justice Scalia and Mr. Garner later refute the “false notion that the quest in statutory interpretation is to do justice,” writing that “[t]he problem is that although properly informed human minds may agree on what a text means, human hearts often disagree on what is right. That is why we vote... on what the law ought to be, but leave it to experts of interpretation called judges to decide what an enacted law means.” Some of these arguments about theories of interpretation are not new to Reading Law. But as the reaction to Reading Law has already demonstrated, including the unusually fierce public debate between Justice Scalia and Seventh Circuit Judge Richard Posner shortly after Judge Posner reviewed the book, this presentation of the arguments will continue to be provocative. Reading Law should not only be read by practitioners and law students for legal purposes, but for the sake of reading a wellwritten, highly enjoyable text as well. Jeffrey L. Oldham is an appellate partner at Bracewell & Giuliani LLP. Before entering private practice he clerked for Chief Justice William H. Rehnquist of the U.S. Supreme Court and for Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the 4th Circuit. He is a member of The Houston Lawyer Editorial Board.

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January/February 2013

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QuantumSUR, Inc. Great office space at 1601 Wesadvertising / marketing MIDTOWN – 3000 SMITH theimer at Mandell, minutes from 281.955.2449 ext.11 Sublease with established law firm, downtown Houston. Rent includes quantumsur.com partner office (20 X 12) with attached shared access to two conference assistant office (13 X 12). Use of ame- rooms, kitchens, internet, cable, nities, reception area, kitchen, con- phones with VM, all utilities, partference room, free covered parking. time receptionist. Window offices Call: 713-524-2400. ranging from $400-$1,000 per month with no long-term comGalleria – Post Oak Blvd. – Class A mitment. Please call Mark Kidd at AV Rated Firm Seeks Of Counsel Attorneys. AV-rated law firm in Building. 1 or 2 Attorney offices and 713-968-4601 for information. greater Houston area seeks expe1 Secretarial space with access to full Specializing in Financial Fraud, amenities: reception lobby, recep- Former art gallery on Colquitt Street rienced, accomplished attorneys Asset Discovery, Due Diligence, Background, and White Collar Criminal Matters. tionist, kitchen/lunchroom, library (near Richmond and Kirby) con- interested in a virtual of counsel arrangement to grow or supplement and conference room. Space shared verted to law offices has one large Serving Corporate and Legal Communities Worldwide with the utmost discretion. with 6 attorneys in a prestigious furnished office (partner size with their existing practices. Firm has firm. Furnished. Call Stephanie, marble conference table and leather strong web presence and of counsel Our offices are staffed by professional 713-626-3700 chairs) and one or two furnished attorneys are listed on firms’ webintelligence specialists with experience secretarial stations available. Nu- site. Successful candidates will have garnered from premier international government agencies. Sublease Houston Downtown. merous amenities, including con- developed expertise in a particular Large unfurnished executive win- ference rooms, full kitchen, use of practice area, received training at 2323 South Shepherd, Suite 920 dow office (approx. 11’x15’). Large copier and postage machine, and an AV-rated firm, and have a good 713.520.9191 • noukas@noukasintel.com www.noukasintel.com closet (approx. 3’x10’) in executive up to three lines and voice mail academic record. Practice areas of office with built-in storage shelves. on existing phone system. 12 to interest include family law, personal Furnished secretarial area (approx. 28 foot ceilings. Non-smokers injury, fiduciary litigation, corpo4’x8’) next to executive office. Indi- only. Call MaeLissa Lipman at rate, real estate, intellectual propvidual data and phone lines for both 713-840-9600. erty, employee benefits, and comspaces. Includes use of receptionist mercial litigation. Compensation services, two kitchens, and two conbased on business referred between Positions Available 713.621.1180 ference rooms. Parking in building of counsel attorney and firm memArturosUptown.com and nearby. Tunnel access. Call Experienced litigation attorney bers. Firm is also interested in self713-615-6060. sought by firm with a focus on sufficient candidates who want an multi-family, landlord representaMuseum Dist/Montrose office space. tion. Competitive pay. Great en- office with the firm. Please reply to TxBizLaw@yahoo.com Use of 3 conf rooms, kitchen. Recep- vironment. Stable and repeat client

tionist to greet your clients. 22 of- base. Send confidential resume tofices in two remodeled homes. Rents greenwaylawyer@hotmail.com. start at $450 per month. Ask for Ma con Strother 713-781-0778. Litigation firm with a focus on landlord representation is seekHWY 59- HOUSTON (SOUTHWEST) ing experienced litigation paraleSolo attorney subleasing one or two gal/ legal secretary. Competitive very nice window office spaces in pay with great working environlarge/ beautiful office building. Re- ment. Send confidential resume to ceptionist services available. Shared greenwaylawyer@hotmail.com. 44

January/February 2013

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Professional Services Ticket and DWI defense, traffic warrant removal, DPS license hearings, occupational driver’s licenses, and driver’s license issues. Robert W. Eutsler. www.TheTicketAttorney.com Tel. 713-464-6461.

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From page 41

court year, while the number of appeals from final judgments taken by tort and DTPA defendants has fallen by 6%. What this means is that tort plaintiffs are filing outside Texas when they can, abandoning or settling weaker cases earlier, and pursuing appeals only when the perceived error appears to be relatively clear. Given that tort plaintiffs are “picking their battles” more carefully, one might expect that they would enjoy greater success in the appeals they do bring, all else being equal. But all else is not equal. Tort reform measures are the likely reason that reversal rates have held steady, even as tort plaintiffs file fewer cases and take fewer appeals. Jury verdicts and summary judgments: The results of tort reform can also be seen in the declining reversal rate for summary judgments and the rising reversal rate for jury verdicts. In 2001-2002, the reversal rate for summary judgments was 33%, while the reversal rate for judgments entered on jury verdicts was 25%. The difference between the two reversal rates favored plaintiffs, because typically it is the plaintiff who appeals a summary judgment and the defendant who appeals a verdict. In the years that followed, reversal rates shifted in favor of defendants. In 2010-2011, the reversal rate for jury verdicts was 34% and the reversal rate for summary judgments was 31%. Thus, the courts of appeals reversed jury verdicts at a higher rate than summary judgments—even though the presumptions and standards of review applicable on appeal generally run in favor of jury verdicts and against summary judgments. These findings refute the widely held supposition that courts of appeals reverse summary judgments at a higher rate than judgments entered on jury verdicts. Conclusion: There are differing points of view about whether tort reform is sound public policy. The statistics do not take sides in that debate, but they do tell us that tort reform has had the intended effect of limiting tort recoveries. Lynne Liberato and Kent Rutter are partners in the appellate practice group at Haynes and Boone, LLP. Endnotes 1. 2. 3.

TEX. H.R. 1249, 125 STAT. 284, 112th Cong. § 3(n)(1) (2011) (Public Law 112-29) (enacted September 16, 2011). Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 44 S. Tex. L. Rev. 431 (2003). Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts of Appeals, 48 Hous. L. Rev. 993 (2012).

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PLACEMENT POLICY

The Placement Service will assist HBA members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions. 1. To place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the sixmonth period you have not found or filled your position, it will be your responsibility to re-register with the service in writing. 2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/ her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/ she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner. 3. In order to promote the efficiency. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to Pplacement Coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002 or e-mail Brooke Benefield at BrookeE@hba.org. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers. PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. Issue If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office, 713-759-1133.

eration of the Commercial Mortgage Backed Securities (CMBS) industry, including the securitization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/ Depositors, Underwriters of REMIC Trusts, Rating Agencies, Trustees, Servicers and Special Servicers. Looking for in-house position. 2066 2008 graduate of University of Texas Law, licensed in Texas with interest in civil litigation, and especially labor and employment. Summa cum laude B.A. in political science from Middlebury College. Worked for Texas Supreme Court during law school. Strongest assets are analytical, research, and writing skills. Looking for permanent position or tempto-perm opportunity.

Positions Available 5080 SEEKING ASSOCIATE LEGAL COUNSEL for Houston public pension fund. Approx. 4 years’ experience with retirement plans, employee benefits, administrative law, institutional investing or Texas local government law required. Background checks and drug testing. EOE.

5094 ESTATE PLANNING – PROBATE ATTORNEY. SUGAR LAND. Board certified attorney, 33 year Houston area practice serving Harris/ Fort Bend counties, seeking associate attorney with advanced estate planning and probate experience. Positions Wanted 2062 Very Experienced Trial Attorney intimately familiar with the mechanics and opthehoustonlawyer.com

If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office:

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www.hba.org January/February 2013

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LEGAL TRENDS