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The False Claims Act (FCA), 31 U.S.C. §§ 3729 – 3733 was enacted in 1863 by a Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding the Army. The Act provided that anyone who knowingly submitted a false or fraudulent claim to the government was responsible for twice the government’s damages, plus a fine. Over the last 150 years, the FCA has been expanded and extended by virtually every administration, republican or democrat, because it efficiently promotes the active recovery of claims fraudulently submitted to the government. Many states, including Montana, have enacted similar laws for claims submitted to the state. The success of the FCA is in large part due to the incentive it provides those with knowledge of fraudulent billing practices involving the government.

The False Claims Act

The FCA is unique in that it provides a private right of action (the right to file a lawsuit) to recover false or fraudulent claims submitted to the government. Typically, individuals do not have any right of action against a party that harms the United States, but the FCA contains an ancient legal device called a “qui tam” provision (from a Latin phrase meaning “he who brings a case on behalf of our lord the King, as well as for himself”). This provision allows a private person, known as a “relator,” to bring a lawsuit on behalf of the United States, where the private person has information that the named defendant has knowingly submitted or caused the submission of false or fraudulent claims to the United States. The relator need not have been personally harmed by the defendant’s conduct.

The relator who comes forward with unique knowledge of the fraud can file a complaint on behalf of the United States Government and shares in the recovery of the funds fraudulently billed. The FCA then provides the government with the opportunity to pursue the fraud and attempt to recover it, or decline to take any action. Depending on whether the government decides to intervene or not, a relator is entitled to anywhere from 15% to 30% of the total amount recovered. Depending on the circumstances, this could mean that the relator is entitled to several million dollars for assisting the government in recovering fraudulently obtained funds.

Liability

The statute begins, in § 3729(a), by explaining the conduct that creates FCA liability. In very general terms, §§ 3729(a)(1)(A) and (B) set forth FCA liability for any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or knowingly makes a false record or statement to get a false claim paid by the government. Section 3729(a)(1)(G) is known as the reverse false claims section; it provides liability where one acts improperly – not to get money from the government, but to avoid having to pay money to the government. Section 3729(a)(1)(C) creates liability for those who conspire to violate the FCA.

Damages and Penalties

After listing the seven types of conduct that result in FCA liability, the statute provides that one who is liable must pay a civil penalty of between $5,000 and $10,000 for each false claim (those amounts are adjusted from time to time; the current amounts were $5,500 to $11,000, but have recently increased dramatically) and treble the amount of the government’s damages. Where a person who has violated the FCA reports the violation to the government under certain conditions, the FCA provides that the person shall be liable for not less than double damages.

On February 3, 2017, the Department of Justice (DOJ) announced that False Claims Act (FCA) penalties will once again be increasing, effective immediately. Pursuant to the 2015 budget bill, which requires annual re-indexing of FCA penalties for inflation, the minimum per-claim penalty will increase to $10,957 (it jumped from $5,500 to $10,781 last year). The maximum per claim penalty will increase to $21,916 (after jumping from $11,000 to $21,563 last year). The penalties will continue to be adjusted each year to reflect changes in the inflation rate, required to be done no later than January 15th of every year. Each agency is to publish regulations in the Federal Register that note the adjustment of civil monetary penalties (CMP) within its jurisdiction.

These penalties are assessed per claim submitted to the federal government, meaning that any one case can result to countless instances of false claims being submitted. For example, one of the most common types of FCA cases is in the healthcare industry. It is no surprise that the federal government spends enormous amounts of money on health care in the form of Medicare and related programs. Employees of hospitals, nursing homes, or other health care providers often have access to documents and information that could show overcharging of patients, or charging for services never provided, which are often then submitted by the hospital to Medicare or Medicaid for payment. Each time one of these claims is submitted (even if it overcharged the government $1, gives rise to a separate penalty of anywhere between the minimum of $10,957 and the maximum of $21,916. Considering the number of patients treated each day at any given institution, the fines alone can total tens of millions of dollars.

Although the healthcare industry is particularly susceptible to FCA claims, it is only one example of how the FCA is applied. The Act would also apply to military defense contractors or anyone contracted by the federal government to provide a good or service. Wherever someone is being paid by the government, the possibility for a claim under the FCA exists. The Act also applies where an individual or entity avoids an obligation to pay (or repay) the federal government. So, if an entity such as a hospital submits a claim it believes to be legitimate and is paid by the federal government, the entity can still be liable under the FCA if it subsequently determines it is not entitled to the payment.

Conclusion

Committing fraud in order to obtain money or benefits from the government, whether it is the state or the federal government, is a huge risk. Not only is it a crime that has sent many people to prison with long sentences, it also exposes companies and individuals to incredibly severe financial penalties. Because the FCA allows individuals with unique knowledge of the fraudulent practices to sue on behalf of the government and keep a portion of whatever the government is able to recover, there is an incredible incentive for employees, agents and officers of corporations to expose fraud. This incentive has created one of the most efficient ways for the government to recover wasted funds. Not only is exposing fraudulent practices beneficial to society at large, it can lead to enormous recoveries for those brave enough to stand up to illegal fraudulent practices that hurt all taxpayers.

Picking a good insurance company is important, but avoiding the wrong ones is more important. This brief article will discuss a case out of Utah, Campbell v. State Farm, 2001 UT 89. In it, the Utah Supreme Court discusses the business practices employed nationwide by State Farm intended to maximize profits while minimizing expenses. The Court’s decision is quite detailed in its discussion of State Farm’s practices which may or may not have changed since this decision was published over fifteen years ago.

Campbell v. State Farm

After a trial, a Utah jury found that State Farm’s documented business model was so outrageous, they awarded the plaintiff $145,000,000 ($145 million) in punitive damages which are intended to punish a defendant for its malicious and/or fraudulent conduct. The question becomes, what did State Farm do that caused a jury to punish it so harshly? The answer is that the jury was able to hear secret information about State Farm’s “national scheme to meet corporate fiscal goals by capping payouts on claims company wide. This scheme was referred to as State Farm’s ‘Performance, Planning and Review,’ or PP & R, policy.” Id. at ¶ 11.

This nationwide “PP & R” program involved numerous strategies used to reduce State Farm’s costs while maximizing its profits. Keep in mind that these strategies were nationwide, meaning the practices State Farm engaged in were not limited to Utah or any other state. Below are a few quotes from the Utah Supreme Court about what State Farm’s PP & R program actually meant for insureds and consumers. Keep in mind that these are quotes from the court and not opinions. Some of the Court’s language will be emphasized.

1. First, State Farm repeatedly and deliberately deceived and cheated its customers via the PP & R scheme. For over two decades, State Farm set monthly payment caps and individually rewarded those insurance adjusters who paid less than the market value for claims.

o Agents changed the contents of files, lied to customers, and committed other dishonest and fraudulent acts in order to meet financial goals.

§ For example, a State Farm official in the underlying lawsuit in Logan instructed the claim adjuster to change the report in State Farm’s file by writing that Ospital was “speeding to visit his pregnant girlfriend.” There was no evidence at all to support that assertion. Ospital was not speeding, nor did he have a pregnant girlfriend. Id. The only purpose for the change was to distort the assessment of the value of Ospital’s claims against State Farm’s insured.

o State Farm’s fraudulent practices were consistently directed to persons—poor racial or ethnic minorities, women, and elderly individuals—who State Farm believed would be less likely to object or take legal action. Campbell at ¶ 29 (internal citations omitted).

2. Second, State Farm engaged in deliberate concealment and destruction of all documents related to this profit scheme. State Farm’s own witnesses testified that documents were routinely destroyed so as to avoid their potential disclosure through discovery requests.

o Such destruction even occurred while this litigation was pending.

o Additionally, State Farm, as a matter of policy, keeps no corporate records related to lawsuits against it, thus shielding itself from having to disclose information related to the number and scope of bad faith actions in which it has been involved. ¶ 30 (internal citations omitted).

3. Third, State Farm has systematically harassed and intimidated opposing claimants, witnesses, and attorneys.

o For example, State Farm published an instruction manual for its attorneys mandating them to “ask personal questions” as part of the investigation and examination of claimant in order to deter litigation. Several witnesses at trial […] testified that these practices had been used against them..

o Specifically, the record contains an eighty-eight page report prepared by State Farm regarding [one of these witnesses’] personal life, including information obtained by paying a hotel maid to disclose whether DeLong had overnight guests in her room.

o There was also evidence that State Farm actually instructs its attorneys and claim superintendents to employ “mad dog defense tactics”—using the company’s large resources to “wear out” opposing attorneys by prolonging litigation, making meritless objections, claiming false privileges, destroying documents, and abusing the law and motion process. ¶ 31 (internal citations omitted).

4. Taken together, these three examples show that State Farm engaged in a pattern of “trickery and deceit,” “false statements,” and other “acts of affirmative misconduct” targeted at “financially vulnerable” persons … Moreover, State Farm has strategically concealed “evidence of [its] improper motive” to shield itself from liability, which was furthered by State Farm’s treatment of opposing witnesses and counsel … Such conduct is malicious, reprehensible, and wrong. ¶ 32 (internal citations omitted).

Having this information, the jury decided to punish State Farm for its conduct by awarding the plaintiffs $145 million in punitive damages. The purpose behind punitive damages is to punish a corporation for acting maliciously or fraudulently. Corporations only change their practices if the practices are not profitable, that is the nature of a corporation. So presumably, State Farm would have felt the hit of a $145 million award against it and changed its “malicious, reprehensible, and wrong” behavior to avoid ever being punished so substantially again, right?

Not necessarily. Unfortunately, the story does not end here. While you and I would certainly feel such a huge financial hit and change our behavior (as is the purpose of punitive damages), State Farm is a truly massive corporation. So massive, in fact, that at the time of this case in 2001, “$145 million is only 0.26 of one percent of State Farm’s wealth.” Campbell at ¶ 29. State Farm is so massive, that even a penalty of $145 million is relatively insignificant and constitutes less than 1/4 of 1% of State Farm’s total wealth in 2001. With such massive resources, which have only grown more massive over the last decade and a half, the punitive damages awarded against State Farm were not so massive as to substantially effect the company. They could have easily paid the damages, corrected their behavior to avoid additional suits, and moved on with an emphasis on rehabilitating its image in the public’s eyes.

But State Farm was not interested in paying the plaintiffs in Campbell $145 million. Worried that the decision inspire others who had suffered similar treatment to that of the Campbells to file similar suits, which would lead to more punitive damages, State Farm appealed the Utah Supreme Court’s decision to reinstate the $145 million punitive damages award against it (note: the jury’s award was initially reduced by the trial court, but after reviewing State Farm’s conduct, Utah’s Supreme Court reinstated the jury’s original punitive award). State Farm appealed to the United States Supreme Court, arguing that the amount of punitive damages violated its right to due process under the Constitution. Amazingly, the United States Supreme Court sided with State Farm and ruled that the size of the award was Constitutionally prohibited.

The High Court’s ruling in Campbell has set the standard for what is Constitutionally permissible when a jury awards punitive damages against a corporation. It is important to note that a jury can award anything it wishes, but the Supreme Court’s decision in Campbell requires the trial court judge to reduce large awards of punitive damages to, at the most, 9 times the compensatory damages. Compensatory damages are damages that are intended to compensate an individual for things like medical expenses, emotional distress, lost wages, etc.

EXAMPLE

So, as an example of what the Supreme Court’s decision means, consider a case where the compensatory damages awarded by a jury against a defendant corporation (let’s call them “Insurance Company X,”) are $100k. Let’s also say that the jury found the Insurance Company X acted so unreasonably, so incredibly maliciously and fraudulently, that it has to be punished for its actions so that in the future, Insurance Company X will find its malicious (but very profitable) conduct ends up costing it more than it makes. That’s the idea behind punitive damages against a corporation: make the bad behavior unprofitable and it will stop. Let’s also say that after hearing all of the evidence, the jury finds the conduct of Insurance Company X so outrageous it decides to send it a message by punishing it with a $10 million dollar punitive award, as Insurance Company X is a big company, but not so big that it won’t feel the sting of losing $10 million. The jury members will go home thinking, “we just send a strong message to all insurance companies that their malicious and fraudulent actions are no longer going to be tolerated and that if they choose to subject people to that kind of malice, they will not be rewarded in the form of profits but instead will be punished in the form of punitive damages.”

But what the jury is never told is that Insurance Company X will never pay anything close to $10 million dollars for its behavior. Regardless of a corporations malicious, fraudulent or wrongful behavior, and without consideration of whether a punitive damage award of $10 million will even be felt by Insurance Company X because of its enormous wealth, the trial court will have to follow the US Supreme Court’s decision in Campbell and will reduce the punitive damages to, at the very most, 9 times the compensatory damages (in our example, the compensatory damages are $100k). Thus, Insurance Company X gets to escape the “punitive” portion of the damages by reducing that $10 million to no more than $900k (9 times the compensatory damage award). Insurance Company X can easily afford to pay that and because its business practices are so profitable (even though they are also malicious, fraudulent and wrong). In this example, Insurance Company X has no incentive whatsoever to cease acting maliciously or stop committing fraud against its insureds or claimants.

However, the Supreme Court went a step further and stated that a punitive damages award of just 4 times the compensatory damages (meaning punitives of $400k when compensatory damages are $100k) is “close to the line of constitutional impropriety.” State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). Insurers can easily afford to pay that amount of money if they are making huge profits by acting with malice and fraud. So, Insurance Company X continues its horrendous behavior and becomes even more wealthy as it defrauds consumers and destroys lives of innocent people injured by its insureds.

CONCLUSION

A corporation’s purpose is to maximize profits while minimizing costs. That is what makes shareholders wealthy. However the world of insurance is different than just about any other corporation. Insurance companies have legal and contractual obligations to take care of their insureds and deal fairly with injured people making claims. But that doesn’t always happen. The conflict inherent in acting for the benefit of an insured while also maximizing profits creates a very real problem. That problem is not theoretical, but as the Utah Supreme Court documented, it is very real and creates the opportunity for insurance companies to put their own financial gains ahead of all else, even the welfare of their paying customers.

Do some research before selecting an insurance company. Not all are equal. And if you feel like you have been wronged by your insurer, no matter who it is, talk to a lawyer about it.

Many people do not know what actually happens when one person “sues” another.  The path to a jury is not straight or quick, but involves significant preparation and planning.  This brief guide is meant to be a brief overview of the typical steps necessary to prevail on a civil lawsuit filed in state court.

The first step to any lawsuit is to file a complaint with the court.  See Montana Rules of Civil Procedure, Rule 3.  In order to instigate a lawsuit, a plaintiff must file a complaint in the correct court.  The state courts in Montana are broken up by county and which county a plaintiff is required to file his/her complaint depends on the kind of lawsuit and the facts giving rise to the plaintiff’s claim.  A complaint does not need to be complicated or extensive.  A complaint need only contain a short and plain statement of the claim showing the plaintiff is entitled to relief, and demand the specific relief the plaintiff is seeking.  A plaintiff needs to provide the court with two documents: the complaint, and a summons that the court will issue.

After a complaint has been filed in the correct court and obtaining a copy of the suit and the summons issued by the court, a plaintiff has (in most cases, but not all) three years to “serve” the suit.  Serving suit means hand delivering a copy of the complaint and summons to the defendant or an authorized representative of the defendant.  There are other means of serving suit, but they will not be discussed here.

Once a complaint and summons has been served on a defendant, the defendant must file an “answer” with the court and the plaintiff.  The answer must state in short and plain terms the defenses to each claim asserted in the complaint and admit or deny the allegations contained in the complaint.  The defendant’s answer must also contain any “affirmative defenses” the defendant is planning on using against the plaintiff’s claims.  Affirmative defenses include comparative negligence, fraud and any claim the plaintiff is barred from suing because the statute of limitations has expired on the claims asserted.  These are not the only affirmative defenses available to defendants.

After the plaintiff receives the defendant’s answer, the parties begin what is called “discovery.”  Discovery is the process of getting information from the other party through written requests, depositions and requests for production of documents and other tangible things.

Upon request from a party, the court will bring the parties together for a scheduling conference.  During this conference, the parties agree on specific dates for the conclusion of discovery, the deadline for submission of motions and a trial date.  In state court, the parties can agree to vacate this order if they wish.  Federal court, however, is different and absent extreme conditions, the scheduling order remains in place throughout a case after it is issued.  A typical scheduling order in state court plans for a trial date roughly six months from when the order is issued.  However, in very complicated cases with difficult issues or cases with numerous plaintiffs or defendants, the scheduling order will provide more time for the parties to conduct discovery and will set a trial date the court feels appropriate under the circumstances.

Only then can the parties begin the process of selecting a jury for the trial.  Once a jury has been selected, the trial can begin.  Depending on the complexity of the case and the issues to be litigated (including the number of witnesses and exhibits each party intends to offer), the trial can take anywhere from a single day to several weeks.  Once the parties have presented their cases and finished their closing arguments, the judge then instructs the jury on the law.  After the legal instructions, the jury is sent to deliberate and come to a decision and render a verdict on liability and award damages, if any.  The court enters the judgment and the process is concluded, unless one or both parties believe the court erred in some way.  If so, the parties can appeal specific legal issues to the Montana Supreme Court.

This is a long and involved process that is not to be entered into lightly.  Thankfully, very few cases are ever tried in front of a jury.  Because both parties realize just how long and difficult it is to try a case, the vast majority of cases settle prior to trial.

According to the Journal of the American Medical Association, as many as 225,000 people die each year from acts of medical negligence. This includes around 12,000 deaths from unnecessary surgery and 7,000 deaths from medication errors in hospitals. Despite the prevalence of healthcare provider malpractice and the often devastating effects of even small acts of negligence, patients’ rights to recover the damages caused by medical malpractice have been extensively targeted by lobbyists for insurance companies and physicians associations. These lobbying efforts have had tremendous success over the last two decades and have resulted in special interest laws that restrict the time injured patients have to file lawsuits, the hoops people have to jump through to simply get into the courthouse, as well as the amount of money available to victims of malpractice. The result? Medical malpractice claims are 1) difficult, 2) time consuming, 3) incredibly expensive and 4) limited in the amount of money a hurt patient can recover. For those reasons, the number of law firms who take on medical negligence claims are dwindling. It is becoming harder and harder for injured patients to be compensated for clearly negligent acts by physicians and/or medical staff.

Let’s start at the beginning: what constitutes medical malpractice? Medical malpractice is defined under Montana law as “‘Malpractice claim’ means any claim or potential claim of a Claimant against a health care provider for medical or dental treatment, lack of medical or dental treatment, or other alleged departure from accepted standards of health care in the rendering of professional services which causes injury to the Claimant, whether the Claimant’s claim or potential claim sounds in tort or contract, and includes but is not limited to allegations of battery or wrongful death.” Mont. Code Ann. § 27-6-103(5).

As a result of intensive lobbying efforts by insurers and physicians organizations, the Montana legislature has enacted Mont. Code Ann. § 27-2-205(1) requiring that any claim alleging medical negligence (malpractice) be commenced within 2 years “after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury…but in no case may an action be commenced after 5 years from the date of injury.” This is an example of special interest legislation at its finest. The standard statute of limitations for torts (like a car crash or slip and fall) is 3 years. In addition to being required to first submit to the MMLP, the time available for an injured patient to sue a doctor or hospital is shorter than other types of injuries. Plus, the statute expressly forbids any cause of action for medical malpractice that occurred over five years ago, regardless of whether the patient knew or should have been aware that they had a claim. No other individuals in a professional field (including attorneys, accountants, real estate agents, or any other professionals) have this type of protection granted from the legislature. Truly, no other occupation has so many strong protections intended to limit liability for negligent acts committed in the course of practicing their profession. As the statistics on medical malpractice show, medical errors are a huge problem that hundreds of thousands of people and families suffer from each year.

Intensive lobbying efforts have resulted in the creation an administrative body known as the Montana Medical Legal Panel (MMLP). The MMLP is made up of six Panel members: 3 health care professionals and 3 attorneys. All six are randomly chosen. The Panel’s stated purpose is “to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well founded.” Mont. Code Ann. § 27-6-102. In other words, the MMLP’s job is to make it more difficult to file a lawsuit against a doctor or hospital alleging medical malpractice. Thus, prior to ever setting foot in a courthouse or even filing a Complaint in court, a claimant (also known as a plaintiff after filing the complaint) must submit the claim to the Panel. The MMLP hears the evidence from both the claimant and the healthcare provider and issues a decision on 1) whether the healthcare professional violated his/her/its professional standard of care, and if so, 2) whether that violation caused the claimant’s damages.

Let’s say you have filed a claim with the MMLP and after presenting your evidence, the Panel finds 6-0 in favor of the doctor, concluding the doctor did not violate the professional standard of care in his/her profession. What happens then? After the Panel decides (either for or against you), then and only then can you file your lawsuit in court. Again, there are special rules about the time within which you must serve your lawsuit on the healthcare professional. Typically, you have 3 years after filing a lawsuit to serve it on the defendant. Filing the lawsuit ensures you are not barred by the statute of limitations. But if you are not ready for the court to set a date for your trial and all of the things that have to happen before your trial, you generally have 3 years to give the lawsuit to the defendant, who then has to respond within a short amount of time. However, in medical malpractice claims, you only have six months to serve your lawsuit on the defendant and launch into litigation, ready or not. The clock begins to tick thirty days after the MMLP issues its decision. Again, this six moth window to serve the lawsuit is a special law that only applies to healthcare professionals and hospitals. No other industry or profession has such a limitation on claims against its members.

So, you’ve won or lost at the MMLP and it is time to litigate your medical malpractice claim. What do you have to prove to a jury and how do you have to prove it? The Court has said that plaintiffs in medical malpractice claims must have an expert witness in the same field as the medical professional being sued. In other words, if you are suing an orthopedic surgeon for accidentally removing your right leg rather than your left, you are required to find and hire another orthopedic surgeon. As you can imagine, orthopedic surgeons are not inexpensive, often charging over $1,000 per hour spent on your case. This can and often does result in a single expert witness bill exceeding $25,000. Further, the medical community is protective of its members and finding a doctor willing to testify that another doctor made a mistake can be a huge challenge. More often than not, it requires finding an out of state physician. The costs just keep piling up if you want to sue a medical professional for screwing up.

As the costs of bringing a suit mount, the legislature has also enacted laws restricting the amount of money a plaintiff can recover from a doctor. Due to the very effective lobbying of insurance companies, Montana’s legislature has enacted laws that put a “cap” on certain kinds of damages. Mont. Code Ann. § 25-9-411 limits the amount of money available to a plaintiff for “non-economic damages” to $250,000. Non-economic damages are things like compensation for pain and suffering, stress and anxiety, loss of enjoyment of life, scarring and disfigurement, and similar harm caused by the defendant’s malpractice. This so called “non-economic damages cap” is especially problematic in cases involving the death of a child. The economic damages (medical bills, the cost of future medical care, reimbursement of lost earnings, compensation for the injured party’s inability to work, etc.) are minimal when a baby or child is wrongfully killed due to a mistake in the emergency room, for example. It is difficult to imagine a more emotionally devastating event to any parent than the death of a child. Regardless, the legislature has limited the parents’ right to recover for the suffering caused by the death of their child to $250,000.

The effect of this special law capping non-economic damages can be dramatic. Imagine two different scenarios: 1) you are on your way to the ER because your child is extremely sick and you are struck by an inattentive driver and that crash kills your child; 2) you avoid any car collision on the way to the ER, but when you get there, the nursing staff administers 10 times the safe dosage of a medication to your child, causing your child to go into cardiac arrest and ultimately die. Both scenarios involve the exact same result: your child has died due to the negligence of someone else. However, if your child dies in the car accident, there is no limitation on what a jury can award for the emotional devastation resulting from the loss of your child. On the other hand, if you make it to the hospital and your child perishes due to a medical mistake, the jury can find that your emotional distress entitles you to an award of (as an example) $5 million. What the jury does not know (and will never be told) is that their decision to award $5 million will be reduced by the judge because of the non-economic damages cap. In the end, the jury’s $5 million verdict translates to compensation of no more than $250,000. The law specifically states that “the $250,000 limit … may not be disclosed to a jury.” Mont. Code Ann. 25-9-411.

In summation, medical malpractice cases are very unique and patients’ rights have been slowly but dramatically diluted by “tort reform.” And although reform may sound like a good idea, the only winner in the kinds of special interest laws discussed in this post are the insurance companies who lobbied so effectively to get them. Doctors, patients, and society as a whole are not the intended beneficiaries, and these restrictions actually undermine a fundamental concept in the law: if you suffer injury or damages due to someone else’s negligence or willful misconduct, you are entitled to any and all compensation that is necessary to put you in the position you would be in, but for another’s wrongful conduct. In essence, this societal contract ensures that people are held responsible for their misconduct and that an innocent victim is compensated for the injuries he or she has suffered at the hands of another.

Special interest laws that are the result of intensive lobbying efforts like those that make medical malpractice claims harder to bring, more expensive, and provide less compensation to injured patients undermine the fundamental idea of fairness and accountability. These laws are ultimately aimed at lawyers and have been successful in making med mal cases too complicated and expensive to bring on behalf of clients. Unfortunately, people do not always see the serious harm caused by these restrictive special interest laws unless and until they or their loved ones are injured by a medical professional’s negligence.

Employment laws everyone should know 

Note: this posting was an update and modification (to include Montana law) of a 2010 post written by Donna Marie Ballman.  The original post is available at

https://www.avvo.com/legal-guides/ugc/employee-rights-overview

Discrimination

You have the right to be free from discrimination in several contexts.  The most common context is employment, however anti-discrimination laws go far beyond that limited context.  You DO have the right to not be discriminated against in housing, education, public accommodations, credit/finance/insurance and state and local government services.  Federal anti-discrimination laws (which apply to employers with over a certain number of employees, usually 15) and the Montana Human Rights Act (which applies to all employers operating in Montana) do not prohibit all types of discrimination, however.  To be covered under these laws, you must be a member of a “protected class” and the discrimination must be related to your membership in that class.  These classes include the following:

• Race
• Age (if you are 40 or older)
• Sex (including pregnancy, maternity, sexual harassment, sexual orientation in Montana)
• National origin
• Disability
• Pregnancy
• Familial status (housing only)
• Religion
• Genetic information

You ALSO have the right to be free from any kind of discrimination or retaliation based on your objecting to any discriminatory practices of an employer or the government, and it is illegal to discriminate against a person because he or she is married to, or associated with, a member of any of the protected classes of individuals above.  Montana State law protects all employees, but to be protected under federal law and the Americans with Disabilities Act (ADA), an employer must have at least 15 employees (for age, 20 employees).  It is important to point out that you DON’T have the right to be free of discrimination against you for just being you.  There are no protections for personality conflicts, appearance, non-religious beliefs, and other non-protected categories.

If you feel you have suffered discrimination based upon any of the classes listed above, you should contact an employment attorney or the Montana Human Rights Bureau at (800) 542-0807 or visit them at http://erd.dli.mt.gov/human-rights.  Your time to file a complaint is very limited (usually only 180 days from the date of discrimination), so if you have any doubt, contact them sooner than later.

Harassment

You DO have the right to not be harassed due to your race, age, sex, national origin, disability, pregnancy, religion, genetic information, color, objecting to discrimination, or association with a person in one of these categories.  All employers in Montana are subject to the Montana Human Rights Act, but only employers with 15 or more employees are subject to the ADA. You DO have the right not to be harassed if you’re a covered whistleblower, took covered Family and Medical Leave, made a worker’s compensation claim, or took some other legally protected action.  You DON’T have the right to be free of a hostile work environment that isn’t based on one of the above categories.  You DON’T have the right to be free of bullying or general harassment in the workplace.  If you complain about harassment, you DON’T have the right to be free of retaliation unless what you complained about was legally-protected harassment in one of the categories above.

Right to Work

If you live in a “right to work” state, you probably think you have rights you don’t.  Be careful about this.  If your state is “right to work,” that means you DO have the right to work in most industries without joining a union.  You DON’T necessarily have the right to work for a competitor of your employer’s.  If you’re being asked to sign a non-compete agreement, Montana has limited the application of non-compete clauses to the county in which you are employed as well as adjacent counties.  Right to work simply has no effect on non-compete clauses in employment agreements.  Montana is the only state that is not an employment “at-will” state.  In Montana, non-probationary employees can only be terminated if the employer has “good cause,” or a business related reason for the termination.  Employers in Montana are allowed to set any reasonable probationary period for employees they wish.  If the employer has no policy, the law presumes a 6 month probationary period during which employees can be terminated without cause.  This does not mean, however, that employees can be terminated for any reason.  Employers are still prohibited from terminating a probationary employee for discriminatory or retaliatory reasons.  Other rights and responsibilities are contained in collective bargaining agreements (for members of a union) or employees under contract.

Benefits

You DO have the right to get a description of your health insurance, pension, and other benefit plans.  You DO have the right to enforce the duty of the people managing your benefit plans to administer them without fraud, self-dealing or kickbacks.  You DON’T have the right to any specific benefits from your employer, unless you are granted these benefits in a collective bargaining agreement.  Your employer doesn’t have to provide health insurance, vacation pay, sick pay, severance pay, pension or other benefits unless they have an existing plan.

Hours

You DO have the right to be paid for all hours worked and to be paid overtime for hours worked over 40 hours if you aren’t exempt.  You DON’T have the right to a specific schedule, to not work extra hours, or to come in late.  If you need assistance collecting unpaid wages you feel you are entitled to, contact the Montana Department of Labor, Wage and Hour Division at (406) 444-5600.  Visit their website at http://erd.dli.mt.gov/labor-standards/wage-and-hour-payment-act.

Illness

You DO have the right to take Family and Medical Leave if you’ve worked at least a year, if you work enough hours, and if your employer has 50 or more employees.  But there are lots of hoops to jump through, so read your handbook and know the employer’s requirements.  You DON’T have the right to sick leave, excessive absenteeism, take care of a sick kid, or miss work due to illness (even with a doctor’s note) unless you are covered by Family and Medical Leave, or unless you suffer from a disability as discussed below.

Disability

You DO have the right to seek reasonable accommodations for your disability under the ADA that allow you to perform all the duties of your job if your employer has at least 15 employees.  If your employer has fewer employees, you still have the same basic rights under Montana’s Human Rights Act.  It is NOT a reasonable accommodation to eliminate an “essential function” of your position, nor do you have the right to an accommodation that would cause your employer an undue burden.  If you request an accommodation, your employer should schedule a sit-down meeting with you to discuss the specifics of your limitations before denying any request.  Denying an accommodation request that is reasonable constitutes discrimination under both state and federal law.  If no accommodation is possible, you may be entitled to reassignment.

Whistleblower

You DO have the right to report illegal activities of the employer to specific government entities, to object to or refuse to participate in certain illegal activities of the employer, and to not be retaliated against for doing so.  Whistleblower laws are diverse and have lots of requirements, so make sure you’re doing what is required before you report or object to the illegal activity.  You DON’T have the right to complain about incompetence, coworkers ripping off the company, ethical violations, unprofessionalism, or general harassment without rising retaliation.  Make sure you’re protected before you complain.

Privacy

You DO have the right to privacy in your phone calls unless your employer meets certain legal requirements.  Montana law requires that each party expressly consent to being recorded.  Surreptitious recording is illegal, unless you are recording a public official in a public place.  If you think you’re being illegally recorded, contact an employment lawyer to find out your rights.  You DO have some rights to privacy of your medical information.  You DO have the right to not be subjected to a polygraph (except certain professions like law enforcement).  While many employers use credit history in their employment decisions, both Montana and the EEOC consider this practice to be a legal violation.  It’s illegal to discriminate against you based upon a bankruptcy.  You DON’T have the right to keep your criminal record a secret unless it’s been expunged.  You DON’T have the right to dress any way you want.  You DON’T have the right to privacy in your off-duty behavior.  You can be fired for things you do outside of work.  If you work for government, you are protected from having your belongings searched.  You DON’T have the right to privacy in your workplace internet use or email.  You probably DON’T have the right to not be drug tested. No states prohibit employment drug testing, but some do require cause for the test if it’s done while you’re employed, as opposed to pre-employment.  You DON’T have the right to free speech.  Your postings on Facebook, Twitter, and other websites can get you fired.  If you work for government, you have some free speech protections but they’re not unlimited.

Conclusion

We hope these basic tenants of employment law, especially with regard to the laws of Montana are helpful to you.  There are many nuances to these laws and nothing contained herein should be construed as legal advice.  These are laws and thus, they are subject to frequent change.  If you have specific questions about your rights or the rights of your employees, contact an attorney who practices employment law.

Blog Post from Montana Cowgirl Blog, See full article HERE

James Conner at the Flathead Memo wrote this week about “Marsy’s Law,” a ballot measure for which signatures are now being gathered in Montana.  Marsy’s Law is what is known by its advocates as a “victims Bill of Rights,” and is modeled on a ballot measure that has passed in a few other states. The Logicosity Blog has a post up about it here too.

Marsy’s Law claims to help victims of violent crimes, by making it easier to prosecute the accused but also keeping them behind bars for longer periods of time. This, mind you, comes as Democrats and Republicans in Washington are agreeing that prison sentences have been grotesquely excessive and are in need of reform toward some leniency. So Marsy’s Law is the kind of thing that you would have expected to see in the 1990s, when “Crime Bills” like mandatory minimums and sentence enhancements were all the rage and even moderate Democrats supported them.

My bigger problem is that this effort to amend the Montana Constitution is being funded, and was conceived, entirely by a California billionaire named Henry Nicholas, founder of Broadcom, who apparently has no connection to Montana at all.  Nicholas donated around $700,000 to the Montana project to get signatures and will no doubt throw in more. Chuck Denowh, the GOP operative, is running the effort and probably approached Nicholas to pitch him on the whole thing. Like any good astroturfer, Denowh is trying to make it appear on social media as though many Montanans are actively interested in supporting the the measure (they aren’t). And to my knowledge, no law enforcement official, nor victim, nor the Attorney General, has recently voiced any major needs or concern that at the Montana legislature to ask for all the things that Marsy’s Law provides. So it’s unclear why Nicholas is suddenly concerned about something in Montana that nobody really asked for.

Not everything in Marsy’s Law is objectionable, but as a whole, there are many things wrong with it, starting with the fact that it will amend the Montana Constitution. This is not a proposed statute that will be on the ballot. It’s a constitutional amendment, and many of the things it proposes could ultimately be ruled unconstitutional under the U.S. constitution or federal law. For example, the measure would allow an alleged victim of a crime to refuse to be deposed by the defense lawyer. If you are an accuser, the defendant has the right to confront you. That’s in the U.S. Constitution.  Also, in many states this bill has been used to keep people from being paroled, even when they should be, and it has acted as a gateway for instituting harsher sentences.  Keeping people in prison who would have been eligible for parole drives up costs and sticks Montana taxpayers with the bill.

Though Nicholas may have legitimate personal reason for funding these measures (his sister was murdered when she was a young woman), what he is doing is meddling in a state where, to my knowledge, there is no problem with the criminal justice system in so far as the treatment of victims.  One would think that if Nicholas were so concerned with victims rights in Montana, that he would have spent some time here, done some sort of fact finding.  Instead, he will eventually have mailed a check of close to $1 million to a GOP operative who will no-doubt take a generous portion for himself, and then use the remainder to fund a ballot measure that will confuse citizens and offer them  a solution to a problem that barely exists.

“I was in a car wreck that was not my fault. The insurance company is saying they’ve determined their insured is 80% at fault, so they will pay me 80% of my medical bills and 80% of my property damage. Is that legal?”

In Montana, insurance companies have certain obligations to injured parties that begin when liability is “reasonably clear.” For example, if you are rear ended, liability is reasonably clear because the driver who hit you was failing to drive in a way that would avoid injuring members of the general public. That driver failed to drive carefully which caused the accident.

When liability is reasonably clear (or when an insurance company admits liability), obligations we refer to as Ridley and DuBray are triggered. Ridley obligations (named after a Montana Supreme Court case) require an insurer to pay those medical expenses not reasonably in dispute that are caused by the accident in advance of settlement. Nothing in Ridley limits the expenses the insurer has to pay to the percentage the insurer believes its insured was at fault. DuBray is another Supreme Court case that imposes the same requirements that Ridley does, but to other undisputed expenses like lost wages.

The bottom line is that Ridley and DuBray require insurance companies to compensate people injured by their insured for expenses that are not in dispute, and requires the insurer to do so before the case has settled. An insurer whose insured is liable for damages is not permitted to offset how much it must pay for medical expenses or lost wages (or property damage) by what it believes to be your percentage of fault.

For example, if an insurer says their insured is liable, but that you share some of the fault (let’s say 20%), some states permit an insurer to pay you 80% of your undisputed damages. Montana is different. Comparative fault (your share of the responsibility for the accident) is dealt with at the time of settlement. Ridley and DuBray apply to an insurer’s obligations before settlement and do not permit an offset. The logic behind these cases makes sense. If someone else causes you to lose wages or incur medical expenses, and their liability for your losses is reasonably clear, you should not have to wait months or years with outstanding medical bills or lost wages.