The Privacy Protection Act of 1980

In some instances, when a subpoena cannot be issued, as in cases when a court date has not yet been set, government officers or employees have attempted to search reporter newsrooms to seize the information. In such cases, assertion of the reporter’s privilege to keep the information confidential would be premature and thus, unavailable.

However, the Act protects a reporter’s “work product” or “documentary materials” in their possession from being searched or seized in newsroom searches by government officers and employees, even if the government has a search warrant. “Work product” generally includes materials that were created for communication to the public, such as article drafts and notes. “Documentary materials” refers to items used to formally record information, such as photographs and videotapes.

Congress passed the Act in reaction to a 1978 U.S. Supreme Court case, in which the Court ruled that the government could search a newsroom or a reporter’s home with a search warrant if there was reason to believe that evidence of a crime would be found. Like the reporter’s privilege, the purpose of the Act’s prohibition against newsroom searches is to encourage the free flow of information to the public via the news media, by protecting the confidentiality of a reporter’s sources.

Exceptions to the Federal Prohibition on Newsroom Searches

The protections provided by the Act are not absolute. In other words, under certain specified circumstances, searches typically in violation of the act may be permitted. The government may search for or seize a reporter’s “work product” or “documentary materials” where the government has probable cause to believe that:

• The person possessing such materials has committed or is committing the criminal offense to which the materials relate
• The information is necessary to prevent death or serious injury
• The issuance of a subpoena would lead to the destruction of “documentary materials” (the materials would likely be destroyed when the members of the newsroom hear about the issuance of the subpoena)
• The information relates to national security or child pornography

If federal or state law enforcement officials violate the Act, a news organization may sue and could receive damages, possibly including legal fees.

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Child Citizenship Act of 2000

The Child Citizenship Act of 2000 (CCA) governs the acquisition of U.S. citizenship by children born abroad. Specifically, children born outside the U.S. receive automatic citizenship where the following three conditions have been satisfied:

1.      At least one parent is a U.S. citizen (either by birth or naturalization);

2.      The child is under the age of 18 years; and

3.      The child is residing in the U.S., in the legal and physical custody of the citizen parent

          pursuant to a lawful admission for permanent residence.

However, where the child was born abroad and out of wedlock, some additional requirements might apply if only the father is a U.S. citizen.

Immigration and Nationality Act

Children born abroad to unmarried parents of different citizenships face unique citizenship issues depending upon the gender of the “citizen” parent. Under the INA, U.S. citizenship is automatic at birth for a child born to a citizen mother, provided that she has previously resided in the U.S. for at least one year. However, the INA imposes additional requirements for the child to acquire U.S. citizenship if it is the father who is a citizen.

Additional Requirements for Citizen Fathers and Noncitizen Mothers

Where a child is born outside the U.S. to a U.S. citizen father and a noncitizen mother, U.S. citizenship of the child is not automatic. In order to acquire citizenship, the INA requires clear and convincing evidence of a blood relationship between the child and the citizen father. Additionally, before the child reaches the age of 18, one of the following must occur:

• The child must be legitimated under the law of his residence or domicile;
• The father must acknowledge paternity of the child in writing or under oath; or
• The paternity must be established by a court order.

The imposition of additional requirements based on the gender of the citizen parent sparked a constitutional challenge on the ground of denial of equal protection of the laws.

Equal Protection of the Laws Based on Gender

Under the U.S. Constitution, all citizens are entitled to equal protection of the laws. This means that the government is prohibited from enacting legislation which discriminates against a particular class of persons. In general, there are different standards which apply depending on the targeted class of individuals. For example, gender is a “quasi-suspect classification” and any government action which affects one gender more than another must be substantially related to an important government interest in order to be constitutional.

Nguyen v. INS

In Nguyen v. Immigration and Naturalization Service (2001), the U.S. Supreme Court considered whether the INA’s parental gender differentiation violated equal protection. Tuan Anh Nguyen was born in Vietnam to an unmarried couple; a Vietnamese mother and an American father. At age six, Nguyen came to live in Texas with his father and became a lawful permanent resident of the U.S. When he was 22, Nguyen was convicted of serious crimes and the U.S. government sought to have him deported as an alien. None of the additional paternity requirements had been satisfied prior to Nguyen turning 18 and he was thus ineligible for U.S. citizenship. Nguyen filed suit, arguing that the additional INA citizenship requirements for children born abroad and out of wedlock where only the father was a U.S. citizen, violated the equal protection clause.

Constitutionality of the INA Classification

The Supreme Court upheld the INA requirements as being constitutional. The majority found that a law which grants or does not grant automatic citizenship to children born abroad to unmarried parents depending on the gender of the citizen parent is justified. Requiring U.S. fathers of children born abroad to take additional steps to establish paternity was held to have promoted the important governmental interest of avoiding proof of paternity problems, which are obviously more difficult to resolve than establishing maternity.

In addition, the Court reasoned that it is more important to establish paternity in order to demonstrate an actual parent-child relationship exists, which was held to be inherent with mothers by virtue of the birthing process. In turn, this relationship provides evidence of a connection between the child and the United States. Finally, the additional requirements imposed by the INA were found not to be overly burdensome and are thus substantially related to important governmental interests.

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Scope of Application in Agreements “Involving Commerce”

The FAA is comprised of three chapters.  Chapter 1 addresses the enforceability of agreements and jurisdictional matters while Chapters 2 and 3, both enacted years after chapter one, contain provisions addressing international arbitration.  Chapter 1 indicates that its text specifically applies to “written [provisions] in any maritime transaction or a contract evidencing a transaction involving commerce…”  However, the interpretation and application of “involving commerce” within the FAA’s context has been litigated repeatedly. 

During the 90′s, the Supreme Court handed down numerous opinions addressing this issue.  One of the common threads of many of these decisions was the premise that Congress intended “involving commerce” “to signal the broadest permissible exercise of Congress’ Commerce Clause power.”  More recently, in Citizens Bank v. Alafabco (2003), the Court provided guidance regarding the application of “involving commerce” to commercial loan transactions. 

Application of “Involving Commerce” to Commercial Loans

Citizens Bank involved a strained relationship between an Alabama construction company, Alafabco and a lender, Citizens Bank.  Beginning in 1986, Citizens Bank periodically supplied Alafabco the necessary capital to fund construction projects.  However, in 1998, the relationship suffered when Citizens Bank allegedly encouraged Alafabco to bid on a large construction project but then refused to provide the necessary capital in support of the bid.  Consequently, Alafabco suffered significant financial difficulties and entered into two debt restructuring agreements with Citizens Bank.  Both agreements included a provision requiring the parties to submit disputes to arbitration. 

Several months following the signing of the debt restructuring agreements, Alafabco filed suit alleging, among numerous causes of action, that Citizens Bank had negligently caused Alafabco to incur “massive debt.”  In response to Alafabco’s lawsuit, Citizens Bank successfully moved to compel arbitration.  However, on appeal to the Alabama Supreme Court, the court reversed and found that there “was an insufficient nexus with interstate commerce to establish FAA coverage of the parties’ dispute.” In arriving at its conclusion, the Court noted there was no showing that “any portion of the restructured debt was actually attributable to interstate transactions.”  Further, there was no showing that the “funds comprising that debt originated out-of-state” or that “the restructured debt was inseparable from any out-of-state projects.”

U.S. Supreme Court Decision

On appeal, the U.S. Supreme Court reversed and held that the commercial loan transactions at issue involve commerce since the transactions were related to numerous inter-state commerce actions.  Facts considered by the Court included the following:

1. The loans that were renegotiated were for Alafabco’s continued business throughout the southeastern United States.  The loans given to Alafabco “had been used in part to finance large construction projects in North Carolina, Tennessee, and Alabama.”
2. Alafabco secured its restructured debt with all of its business assets.  This included goods which were comprised of “out-of-state parts and raw materials.”  The Court reasoned that if “the Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce…it necessarily reaches substantial commercial loan transactions secured by such goods.”
3. Commercial lending has a broad and significant impact on the national economy and is subject to the regulation of the Commerce Clause.

Thus, according to the Court, such transactions were sufficiently related to interstate commerce to come within the purview of the Constitution’s commerce clause.

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“Custody” is a limitation on an individual’s freedom of action by virtue of a lawful process or authority. With regard to criminal procedure, whether a person has officially been placed in police custody is determined on an objective test basis. The test generally measures whether a “reasonable person” would believe that officer in some way suggested that they were not free to leave and custody is therefore not limited to formal arrests. The determination of what does and does not constitute custody can be subtle.

It is more likely that an individual is in custody where:

• There is a traditional arrest and constraint (handcuffs, closed room, etc.)
• Detention is long and involuntary
• An individual is placed in hostile and unfamiliar surroundings

It is less likely that an individual is in custody where:

• There is a routine traffic stop
• Detention is brief and voluntary (as in a brief field interview)
• The police call an individual on the telephone (since the individual is free to hang up)

Interrogation

“Interrogation” is defined as those words or actions by police which are likely to elicit an incriminating response, including a confession. Police are required to read an individual their rights (i.e., a “Miranda warning”) before they may interrogate or question a detained individual. However, a line of questioning by the police is only an interrogation if the individual is determined to be in “custody.” Interrogation typically involves persuasion or pressure, for example by attempting to convince an individual that in would be in their best interest to confess to a crime or to provide certain details.

Miranda Rights

In Miranda v. Arizona, the U.S. Supreme Court held that all individuals under police custody must be advised of their constitutional rights in order to ensure that they understand their Fifth Amendment right to be free from self-incrimination. Collectively, the rights of which individuals must be advised are their “Miranda rights.” Generally, police must inform suspects that they have a right to remain silent and that they have a right to an attorney, whether or not they can afford one. In addition, the police must advise that any statements made following the Miranda warning can be used as evidence against the individual in court.

A person in custody may decide either to exercise or waive their rights. In general, if the individual asserts the right to silence or an attorney, the police must honor the request and cease the interrogation. In contrast, if the individual elects to waive their rights and agree to talk to the police, the interrogation may continue. However, a waiver of rights is valid only if it is made knowingly, voluntarily, and intelligently.

Consequences of the Failure to Give a Miranda Warning

The Miranda Rule is one of exclusion that was designed to strengthen the rights of suspects in police custody. The purpose is to exclude a person’s incriminating statements from their trial where they did not fully understand all of their constitutional rights in making them. In other words, if police procedures violate Miranda, by failing to advise a suspect of their rights or otherwise, their statements cannot be used against them in court. In practice, however, there are several exceptions to the Miranda requirement.

Exceptions to Miranda

Since the 1966 Miranda decision, the U.S. Supreme Court has carved out several exceptions to the Miranda exclusionary rule. Some of these exceptions include:

• Impeachment: Prosecution may introduce a Miranda-excluded statement of a defendant in court on cross-examination if the defendant contradicts that statement, to show that the defendant is lying.
• Evidence derived from Miranda violation: Where a suspect asserts an alibi in response to police interrogation without being Mirandized, the police may use incriminating information obtained from the alibi against the suspect.
• Delayed warnings: If a suspect confesses without Miranda, but is given a Miranda warning later at the station and confesses again, the second confession can be used against the suspect.
• Undercover police interrogations: There is no Miranda violation if undercover police or informants are used to obtain incriminating statements from a suspect.
• Routine booking questions: Miranda warning is unnecessary before booking questions (e.g., name, address, height, weight) since they are not asked for incriminatory purposes.
• Public safety exception: Miranda is unnecessary before asking a captured suspect where a dangerous weapon is hidden where there is an immediate danger to the public.
• Equivocal requests for counsel: Assertions of the Miranda right to counsel must be direct and unambiguous (“maybe I should talk to a lawyer” is insufficient), otherwise, the interrogation may proceed.

As a result, a violation of the Miranda Rule does not always guarantee that the individual’s statement will be excluded. The Supreme Court has emphasized that Miranda warnings are not constitutionally guaranteed, but rather exist as an aid in the protection of a person’s Fifth Amendment rights.

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However, the U.S. Supreme Court has held that an officer may arrest an individual without a warrant if there is probable cause to believe that the offender has committed even a very minor criminal offense in the officer’s presence.

Valid Searches and Seizures Without Warrants

There are several established exceptions to the warrant requirement, including when police officers have probable cause to believe that the person to be arrested has committed a felony or misdemeanor in their presence. In fact, a great number of arrests have historically taken place without warrants.

In order to arrest a person or otherwise take them into “custody” without a warrant, a police officer must have the same level of probable cause that is required for the issuance of an arrest warrant. Further, an officer performing a warrantless arrest must be able to base probable cause on conditions that existed prior to the stop, rather than on conditions discovered thereafter.

The Probable Cause Standard Applies to All Arrests

In a 2001 case, the U.S. Supreme Court considered whether the custodial arrest of an individual committing a minor traffic offense without a warrant constituted an unreasonable seizure in violation of the Fourth Amendment. Ultimately, the Court held that warrantless misdemeanor arrests are not unreasonable under the Fourth Amendment if based upon probable cause.

Specifically, the defendant in Atwater v. Lago Vista was arrested without a warrant for violating a Texas law that required front-seat passengers and small children riding in the front of a car to wear a seatbelt. Upon observing that the defendant was driving with her two small children in the front seat, all without a seatbelt, the police officer in the case pulled the defendant over and arrested her. In upholding the arrest as valid under the Fourth Amendment, the Court reasoned that the arrest was reasonable because the officer had probable cause to believe that the defendant had violated the law.

No Breach of the Peace Limitation

The Court in Atwater also struck down the defendant’s claim that “founding-era common-law rules” restricted a police officer’s authority to make warrantless arrests for misdemeanors except in cases of “breach of the peace” (e.g., non-felony offenses that involve violence). Rather, the Court concluded that there was disagreement at common law over an officer’s warrantless misdemeanor arrest power, and held that such arrests are not necessarily limited to instances of breach of the peace.

The Court supported its final conclusion, that warrantless misdemeanor arrests do not demand the kind of constitutional attention requested by the defendant, with the following factors:

• Anyone arrested without formal process is entitled to a magistrate’s review of probable cause within 48 hours
• Many jurisdictions have imposed restrictive statutes limiting warrantless arrests for minor offenses
• It is in the interest of police officers to limit such arrests, because of the costs to the police if the arrest is found to be unreasonable is simply “too great to incur without good reason”
• Preference for individualized review of Fourth Amendment claims when a defendant makes a viable argument that an arrest was unusually harmful to privacy or physical interests

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Child Citizenship Act of 2000

The Child Citizenship Act of 2000 (CCA) governs the acquisition of U.S. citizenship by children born abroad. Specifically, children born outside the U.S. receive automatic citizenship where the following three conditions have been satisfied:

1.      At least one parent is a U.S. citizen (either by birth or naturalization);

2.      The child is under the age of 18 years; and

3.      The child is residing in the U.S., in the legal and physical custody of the citizen parent

          pursuant to a lawful admission for permanent residence.

However, where the child was born abroad and out of wedlock, some additional requirements might apply if only the father is a U.S. citizen.

Immigration and Nationality Act

Children born abroad to unmarried parents of different citizenships face unique citizenship issues depending upon the gender of the “citizen” parent. Under the INA, U.S. citizenship is automatic at birth for a child born to a citizen mother, provided that she has previously resided in the U.S. for at least one year. However, the INA imposes additional requirements for the child to acquire U.S. citizenship if it is the father who is a citizen.

Additional Requirements for Citizen Fathers and Noncitizen Mothers

Where a child is born outside the U.S. to a U.S. citizen father and a noncitizen mother, U.S. citizenship of the child is not automatic. In order to acquire citizenship, the INA requires clear and convincing evidence of a blood relationship between the child and the citizen father. Additionally, before the child reaches the age of 18, one of the following must occur:

• The child must be legitimated under the law of his residence or domicile;
• The father must acknowledge paternity of the child in writing or under oath; or
• The paternity must be established by a court order.

The imposition of additional requirements based on the gender of the citizen parent sparked a constitutional challenge on the ground of denial of equal protection of the laws.

Equal Protection of the Laws Based on Gender

Under the U.S. Constitution, all citizens are entitled to equal protection of the laws. This means that the government is prohibited from enacting legislation which discriminates against a particular class of persons. In general, there are different standards which apply depending on the targeted class of individuals. For example, gender is a “quasi-suspect classification” and any government action which affects one gender more than another must be substantially related to an important government interest in order to be constitutional.

Nguyen v. INS

In Nguyen v. Immigration and Naturalization Service (2001), the U.S. Supreme Court considered whether the INA’s parental gender differentiation violated equal protection. Tuan Anh Nguyen was born in Vietnam to an unmarried couple; a Vietnamese mother and an American father. At age six, Nguyen came to live in Texas with his father and became a lawful permanent resident of the U.S. When he was 22, Nguyen was convicted of serious crimes and the U.S. government sought to have him deported as an alien. None of the additional paternity requirements had been satisfied prior to Nguyen turning 18 and he was thus ineligible for U.S. citizenship. Nguyen filed suit, arguing that the additional INA citizenship requirements for children born abroad and out of wedlock where only the father was a U.S. citizen, violated the equal protection clause.

Constitutionality of the INA Classification

The Supreme Court upheld the INA requirements as being constitutional. The majority found that a law which grants or does not grant automatic citizenship to children born abroad to unmarried parents depending on the gender of the citizen parent is justified. Requiring U.S. fathers of children born abroad to take additional steps to establish paternity was held to have promoted the important governmental interest of avoiding proof of paternity problems, which are obviously more difficult to resolve than establishing maternity.

In addition, the Court reasoned that it is more important to establish paternity in order to demonstrate an actual parent-child relationship exists, which was held to be inherent with mothers by virtue of the birthing process. In turn, this relationship provides evidence of a connection between the child and the United States. Finally, the additional requirements imposed by the INA were found not to be overly burdensome and are thus substantially related to important governmental interests.

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Sovereign Immunity

The doctrine of “sovereign immunity” was inherited from English common law, i.e., principles generally derived from rulings in court cases. The doctrine historically shielded governments (federal, state, and local) from liability in suits. Governments could not be sued unless they agreed to be sued, and were generally not held responsible for the acts of their employees. There was a fear that governments would be overwhelmed with litigation if lawsuits were permitted against them, resulting in high costs that ultimately would be borne by the public. Critics of sovereign immunity cited the unfairness of depriving individuals of the right to recover damages from those who caused injury.

A landmark 1842 case articulated a limitation on this immunity: immunity exists for “government” functions, which can only be performed by governments, such as police and fire protection, but not “proprietary” functions,” that could be supplied by private concerns, such as providing electricity or gas. Whether a function was governmental or proprietary was the subject of much litigation, but courts generally agreed that design and maintenance of roads is proprietary in nature, and therefore subject to liability.

In 1946, Congress passed the Federal Tort Claims Act, which authorized suits against the federal government under certain circumstances. By 1996, most states had also abolished or modified their sovereign immunity through court decisions or statutes. Immunity can depend on whether the government agency being sued is a state or local agency or whether the state legislature gave permission for the suit. There may also be limitations on the amount that can be recovered from the agency.

Possible Duties of DOT’s and Other Agencies

Usually a state agency, such as a department of transportation (DOT), is charged with proper care in the design, construction, and maintenance of highways. In states where such agencies may be sued, many courts and authorities have held that they have a duty to exercise reasonable diligence to maintain streets and highways in a reasonably safe condition for their common use. This has been interpreted to include a duty to inspect, warn of unsafe conditions (after receiving notice of such conditions), and to make repairs. Actions against a DOT or other agency are usually based on negligence theories arising out of the duties, i.e., there was a breach of duty, which proximately caused injury.

What constitutes “reasonably safe conditions” varies from state to state and case to case. Factors which some courts and authorities have looked at to make this determination include:

• Whether the condition conforms to generally accepted engineering principles, and/ or did conform to such principles at the time of construction or modification. Government manuals, such as “A Policy on the Geometric Design of Highways and Streets” (the “Green Book”) are often consulted.
• The severity of harm posed by a particular condition.
• The likelihood that someone will be harmed by the condition. The frequency and severity of accidents in the area are often considered.
• The availability of ways to correct the condition.
• The usefulness of the condition for other purposes.
• The burdens of removing or correcting the condition.
• Opinions of expert witnesses.

Sources of Roadway Liability

Some accidents may be due to faulty road maintenance, while others may be caused by design defects. Examples of roadway liability resulting in awards against DOT’s and other agencies include:

• Roadway defects such as potholes, ridges, bumps, slick pavement, and fallen trees. The duty associated with these defects may be to warn and repair, after receiving sufficient notice of such defects.
• Roadside defects, such as pavement drop offs, steep embankments, and fixed object hazards (posts, guardrails, traffic barriers, etc.). These are generally related to design issues.
• Defects in items associated with roads, such as traffic signals, signs, and crash barriers.
• Defects associated with bridges, culverts, detours and railroad crossings.

Case Examples

In a suit against the State of New York, a motorcyclist sued for damages he received to his foot and ankle when he fell after hitting an unrepaired pothole. He was awarded $278,188, as New York failed to timely repair the pothole. Similarly, the Georgia DOT was held liable for placing only two stop signs at an intersection during a project extending a highway. A car driven by Elsie Colbert entered the intersection and was struck by a dump truck. Colbert and her two passenger daughters died in the collision. The trial court found sufficient evidence that the intersection failed to comply with “generally accepted engineering and design standards.”

On the other hand, a Louisiana court found that a steep embankment did not present an “unreasonable risk of harm,” when a car with a driver and four passengers veered onto the shoulder, went over the embankment, crashed, and burst into flames. Three passengers died. The driver was intoxicated at the time. It was argued that lack of a guard rail constituted a design defect, but the court disagreed. The court also determined that the embankment was necessary for local drainage.

Affirmative Defenses
In such cases, the government, DOT, or other agency sued may raise affirmative defenses. Depending on the state, this may mean that the driver was guilty of contributory or comparative negligence, such as the driver driving while intoxicated in the above case. If successful, such a defense can eliminate or reduce the damage award.

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FTCA Claim Rights

The FTCA sets forth a procedure for recovery on claims made for damages to property, loss of property, personal injury, or death that are caused by the negligent conduct or omission of a government employee acting within the scope of her office or employment, if a similarly situated employer would be liable under the local laws.

Filing an Administrative Claim

Prior to filing any lawsuit, an administrative claim must be filed with the government agency that employs the person causing the injury or damages (Internal Revenue Service, Department of Justice, U.S. Navy, NASA, etc.).

Agency claims procedures vary, as do the required claim forms (agencies may have their own forms), and the information and documents that must be submitted.  A claim must be filed with the agency within two years of knowledge of the negligence (or when the negligence should have been discovered).  Required information and documents may include:

• A “sum certain,” i.e., the specific dollar amount claimed; a claim may be rejected for failure to specify an exact dollar amount.
• Particulars about the incident (date, place, time, explanation of events, etc.)
• List of witnesses, date of claim, and claimant’s address and signature
• Medical bills, written evaluations by physicians, prognoses and possible future treatment for personal injury claims
• Documentation of lost wages
• Death certificate for a decedent (for a wrongful death claim), plus description of occupation, salary etc., bills for funeral and burial, and evidence of support received by the claimant from the decedent
• Proof of ownership, evidence of purchase, estimates for repair costs and/or receipts for repairs already made, etc. for property damage claims

Investigation and Evaluation of the Claim

Once the claim has been submitted, the agency has six months to evaluate and investigate the claim.  Procedures for investigation vary among agencies and also vary with respect to the amount of the claim.  Larger claims frequently require evaluation and review by senior personnel.

The claim may be accepted or rejected (in whole or in part) and a settlement offered, typically in writing.  If the claimant agrees to the settlement amount, he will be paid through the agency.

If the claim is rejected, in whole or in part, or if the claimant is dissatisfied with the result, he may either appeal through the agency or immediately file suit in federal court.  A lawsuit must be initiated within six months of the rejection, unless it has been appealed through the agency.  In other words, the six month time limit does not run while an appeal is being considered.  If the agency does not respond within six months of submission, the claim is deemed rejected and the claimant may immediately file suit in federal court.

Failure to Comply with FTCA Procedure

The claimant may be barred from recovery, from both the individual employee and the U.S. government, if he fails to comply with the administrative claim procedure.  If the claim is not brought (and the lawsuit not filed) within the FTCA time limits, the right to recovery may also be lost.  Furthermore, failure to pursue the administrative claim can bar a later lawsuit.

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Wrongful Death Actions Distinguished

In cases where parents sue for the wrongful death of their child, most jurisdictions permit parents to recover filial consortium damages from the wrongdoer.  Parents can generally recover these damages under the state’s wrongful death statute.

The situation is much different, however, in cases where the child survives.  Under these circumstances, although the child may have suffered severe permanent injuries, state law varies significantly with respect to the availability of filial consortium damages.  As a general proposition, most states do not recognize parents’ claims for lost consortium when the child survives.

Majority of States: No Filial Consortium Damages for Non-Fatal Injuries

A majority of jurisdictions do not permit parents of non-fatally injured children to recover filial consortium damages.  The following examples reflect the status of the law in several states:

• In 2003, the Texas Supreme Court declined to extend a claim for loss of consortium to the parents of a child with a non-fatal injury.  As such, Texas does not permit parents to recover loss of consortium damages resulting from a child’s serious injuries.
• In 1988, Michigan’s highest state court held that a parent has no cause of action for loss of consortium damages when a child is negligently injured.  However, the parent is still entitled to sue for loss of services as well as medical expenses.
• In 1986, the Wyoming Supreme Court similarly rejected a parent’s right to consortium damages resulting from serious injuries to a child.

Some States Allow Parents to Recover for Non-Fatal Injuries

A substantial minority of jurisdictions authorize parental recovery of consortium damages for injured minor children.  In some states, parents may recover under a statute which expressly sanctions such damages.  In other states, however, parents must rely on case law and judicial interpretation to recover filial consortium damages.

Though not an exhaustive list, the following states permit a parent to recover loss of filial consortium for non-fatal injuries:

• A Massachusetts statute sets forth the following rule: “The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such an injury.”
• In 1994, the Florida Supreme Court expressly ruled that a parent has a common law right to recover for loss of an injured child’s consortium, stating “The loss of a child’s companionship and society is one of the primary losses that the parent of a severely injured child must endure.”
• In 1986, the Arizona Supreme Court granted parents the right to recover consortium damages from a third party who permanently injures their adult child.  The court expressly refused to limit loss of consortium damages in severe injury cases to cases involving minors: “Loss of consortium is a compensable harm, and we see no basis for limiting this action solely to cases of wrongful death [and] no reason for limiting the class of plaintiffs to parents of minor children when the parents of adult children may suffer equal or greater harm.”

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Medicare
Medicare was initially the “primary payer” for medical services to beneficiaries, meaning that it paid first for medical costs, even where other sources existed.  However, high costs led Congress, beginning in 1980, to enact “Medicare Secondary Payer” (MSP) laws.  The MSP legislation sought to reduce Medicare costs by requiring beneficiaries to first exhaust other sources of payment before resorting to Medicare.

Medicare Payment for Treatment of Injuries
Federal law generally prohibits Medicare from paying for any item or service where payment can reasonably be expected from another “primary” source within 120 days.  Primary sources include the following:

• Automobile insurance
• Liability insurance (including self-insurance)
• No fault insurance

When payment from another source is probable, yet not likely to occur within 120 days, the law allows “Conditional Medicare Payment” for medical costs.  Although Medicare providers are often required to question patients regarding possible alternative sources of payment, as a practical matter, the agencies that run Medicare have little way of knowing about such alternatives.  As a result, “conditional payment” is often made.

Medicare Reimbursement: Rights and Duties
The MSP system includes provisions for reimbursement and “subrogation.”  In other words, Medicare succeeds to the rights of the injured party to sue the injuring party, or others, for recovery.  Further, the administration of enforcement efforts of Medicare reimbursement rights has been contracted out to HGS Administrators (HGSA).

Debate has taken place over the nature and extent of Medicare’s right to recover.  Some commentators, for example, have called it a “super lien” against any settlement or judgment in a personal injury lawsuit.  Strictly speaking, the right to recover does not technically constitute a lien (i.e., not a right to recover from specific property or funds).  However, the MSP program grants extensive powers and specifies broad rights and duties related to reimbursement of “conditional payments.”  These include, but are not limited to:

• A duty on the part of the beneficiary (and maybe her attorney) to notify HGSA of any lawsuit and pending or possible settlement or recovery.
• The beneficiary (and maybe her attorney) has a statutory duty to reimburse Medicare for its “conditional payments” within 60 days of receipt of a “third party-payment” (e.g., a settlement or collection on a judgment).  If payment is not timely made, Medicare may begin charging interest.
• HGSA and Medicare have the right to seek repayment (e.g., bring a collection action) from a wide range of individuals who receive payment, but fail to reimburse Medicare (including the injured party and her attorney).  Although it is not clear whether Medicare can proceed directly against the injured person’s attorney after the money has been distributed, at least one court has affirmed this right.  In general, however, it appears that if the money has been distributed and spent, the injured person’s future Social Security benefits will be used to reimburse Medicare.
• As part of Medicare’s right of action, it may recover double the amount of the conditional payments from an insurance company that is a “third-party payer” and “primarily liable” for the damages.  This is true even if payment has already been made to the injured party.  As a consequence, the insurance company may end up paying the injured person and Medicare (resulting in triple payment).  Furthermore, Medicare has the right to deduct the amount from Medicare payments owing to the third-party payer.
• Medicare is deemed to have a “priority right of recovery;” i.e., it takes precedence even if state law or the third-party payer asserts otherwise.

Waiver or Compromise
Depending on the circumstances, Medicare may waive its right to reimbursement, though it is more likely to compromise the amount.  Under applicable regulations, Medicare will reduce its recovery to allow for the cost of procuring the settlement or judgment, including attorneys’ fees.

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