Introduction The Beginning Stages Pretrial Action The next phase of the lawsuit is the discovery phase. The discovery phase of litigation serves several important purposes: to preserve evidence of witnesses who may not be available at trial; to reveal facts; and to aid in formulating the issues to be litigated. Discovery rules are liberal, allowing a great deal of evidence to be revealed. Depending on the complexity of the suit, the discovery phase may last a year or more. Depositions are probably the most useful discovery device. A deposition is sworn pretrial testimony taken out of court in response to oral or written examination and put in writing for use in court. The parties then take depositions of the parties and witnesses with knowledge about the case. During the discovery phase parties can also obtain access to documents and other items not in their possession. The parties can serve written interrogatories, requests for production of documents and requests for admission on the opposing party. The parties also serve requests for production of documents to third parties. After conclusion of discovery, the judge generally schedules a pretrial conference and directs the parties to prepare a pretrial order. The pretrial order identifies the disputed issues, the evidence to be presented and the witnesses to be called to testify during the trial. Resolution Without Trial Trial Appealing the Court's Decision Conclusion Once you have retained an attorney, the relationship of attorney and client is formed. Your attorney has a duty to communicate with you. Your lawyer should keep you reasonably informed about the status of a matter to permit you to make informed decisions about your case. Your lawyer should also promptly comply with reasonable requests for information. There is, however, far more to effective communication and good client relations than merely complying with these rules. The rapport that supports and maintains the trust in the attorney-client relationship depends on the quality of the communication. Quality communication requires honesty and commitment to the process. Communication should be governed by rules of courtesy and good sense. Your attorney should promptly return telephone calls and you should always feel free to contact your attorney whenever you have a question or concern. All of the attorneys at Tisinger Vance, P.C. pledge to fully communicate with our clients to keep them informed of their cases and provide them with the information they need to participate in their cases. You should always feel free to contact your attorney at Tisinger Vance, P.C. anytime by telephone, e-mail or at home, if necessary, and expect a prompt reply. Introduction Mergers and Acquisitions Overview of Mergers A statutory merger is initiated when the board of directors of corporations, which desire to merge, adopt a document known as the "plan of merger". This document must set forth the name of the surviving corporation, the terms and conditions of the merger, including how the shareholders will vote on the merger, and the manner in which the shareholders will be compensated for their interests in the merged company. In approving the merger, the board of directors is bound by its fiduciary duties to the shareholders to act in the best interests of the company. If the transaction is one in which stock will be issued, shareholders receiving shares for their stock may be entitled to additional disclosure and antifraud protection under federal law. After the board of directors adopts a plan of merger, the plan must usually be submitted to the shareholders of each corporation for approval. Approval of the acquired corporation's shareholders is always required because the merger fundamentally changes their interests. On the other hand, the effect on the acquiring corporation may or may not be significant. When a large corporation acquires a small corporation, the effect may be so minimal as to make the cost of a shareholder vote not worthwhile. Many states have guidelines for determining when an acquiring corporation must get shareholder approval. Because shareholders cannot opt out of a merger, usually states provide that shareholders who are entitled to vote and who disapprove of the merger, have the right to cash out of the transaction and receive the appraised fair value for their shares. Overview of Acquisitions Another possibility is for Company A to buy a controlling block of shares in Company B, either from the corporation or directly from its shareholders. Again, Company A could either pay cash or issue its own stock for the shares in Company B. In this case, Company B would become a subsidiary of Company A and could continue to operate essentially unaffected by the transaction, or could be liquidated and merged into Company A. Whether these two transactions would be viewed as mergers or acquisitions depends on whether Company B continues to exist after the transaction. Corporate combinations may be structured in a non-statutory way for tax reasons or in an effort to avoid some of the consequences of a statutory merger, such as appraisal rights to dissenting shareholders. For this reason, some states have adopted the "de facto merger" concept. This doctrine grants the same rights to dissenting shareholders that they would have had if the transaction had been structured as a statutory merger. Other states have simply granted appraisal rights to shareholders in the case of any major transaction, providing a standard procedure covering mergers, exchange of shares and sales of assets, as well as amendments to the articles of incorporation, which significantly affect shareholder rights. Most states treat the sale of assets by one corporation to another in essentially the same way as if a merger had taken place. Though state laws differ, usually a sale of assets requires the approval of the board, the approval of shareholders of the selling corporation, and the dissenters' appraisal rights. When a sale of assets is in the normal course of business, such as a real estate holding company that regularly sells its inventory, the transaction is treated as any other business transaction and only board approval is required. But when the sale is outside of the normal course of business, and can be construed as a sale of substantially all of one corporation's assets, then the statutory protections are usually triggered. A transaction is viewed as a sale of assets when it fundamentally affects corporate ownership and use of the corporation's assets. Most statutes do not consider a pledge, mortgage or deed of trust to secure the debt of the corporation to be a "sale". A sale of "substantially all" assets has been understood to have taken place not only when nearly all the assets of a corporation are sold, but also when that portion sold was of vital significance to the corporation's operations thereby affecting the existence of the corporation. This is but a rudimentary overview of mergers and acquisitions. Variations on these basic scenarios are used to provide corporate and shareholder protections. A good understanding of state and federal laws can be invaluable in minimizing the costs of the transaction, as well as maximizing the potential of the combination. Conclusion Tisinger Vance Experience with Mergers and Acquisitions. The attorneys of Tisinger Vance has extensive experience in structuring, negotiating and closing complex mergers, acquisitions and corporate reorganizations. We assist clients in all phases of the transaction, including business planning, choice of entity, due diligence, obtaining shareholder and regulatory approvals, and preparation and negotiation of the definitive agreements. We have also represented clients in dissenting shareholder proceedings. Our clients include world-wide manufacturers, software companies, health care providers, cooperatives and closely-held businesses. For more information, please contact one of our attorneys specializing in mergers and acquisitions: Hospital Liability for Failing to Comply with the Federal Emergency Medical Treatment and Labor Act Introduction Today, EMTALA functions as an anti-discrimination statute, designed to prevent discriminatory treatment of Emergency Department patients. It has also contributed to conflicts between Emergency Physicians, who are charged by the statute with an enforcement role, and their hospital administrators, on-call attending physicians and managed care entities. Furthermore, it has provided the claimant's bar with new theories of tort recovery. Liability under the Act If a person suffers injury because the hospital did not provide an appropriate screening examination or because it did not stabilize the patient's condition before releasing or transferring the patient, then that person may hold the hospital liable for money damages based on the violation of the Act. However, the cases that have addressed EMTALA liability have made it clear that the Act is not intended to replace or be a substitute for state medical malpractice liability on the part of the hospital. In other words, the federal Act was not intended to provide a federal remedy for misdiagnosis or medical negligence on the part of a health care provider. It is intended to impose liability only for failure to provide an appropriate screening examination and for failure to make sure the patient is stabilized before the patient is transferred or discharged from the emergency room. For example, most courts have concluded that an "appropriate medical screening examination" is one that the hospital would have offered to any other patient in a similar condition with similar symptoms, regardless of whether the patient was insured or could pay for the medical screening. Thus, it has been said that EMTALA is violated only when individuals, who are perceived to have the same medical condition, receive different treatment. It is the patient's burden to establish that the hospital treated him or her differently from other patients. Some courts have determined that, in order to prove that he or she did not receive an appropriate medical screening examination, the patient must establish that there was an improper motive on the part of the hospital. That is, that the decision as to what type of screening to provide was motivated by improper factors such as the indigency, race, or sex of the patient. The majority of courts, however, have concluded that there is no such "bad motive" requirement. They hold that the patient simply must show that he or she was treated differently from other patients. So far, the United States Supreme Court has not expressed an opinion as to whether the "bad motive" interpretation of the appropriate screening requirement was contemplated by the drafters of the Act. The Supreme Court has recently ruled, however, that there is no such bad-motive requirement to establish that a hospital has failed to adequately stabilize a patient before transferring or discharging. Therefore, if a hospital provides appropriate screening and determines that the patient has an emergency condition (or is in active labor), the hospital must make sure the patient is stabilized before transferring or discharging. The Act defines "stabilize" to mean that the hospital must provide such treatment necessary to assure that no material deterioration of the condition is likely to result from or occur during the transfer. It has been held that once the hospital undertakes stabilizing treatment for a patient who has arrived with an emergency condition, the patient's care then becomes the legal responsibility of the hospital and the treating physicians. At that point, the adequacy of care is not governed by EMTALA but by state law governing medical malpractice. For example, in one recent case, a federal appeals court held that a hospital's alleged negligence in deciding whether to transfer a seriously injured patient to a long-term care facility was not governed by EMTALA where the patient had been admitted to the hospital and was treated there for some 12 days before the decision was made that she was stable enough to transfer. When she was transferred to the other facility, her condition rapidly deteriorated, and she died. In ruling that the screening and stabilization provisions of EMTALA did not govern, the court reasoned that the stabilization requirement was intended only to regulate the hospital's care of the patient in the immediate aftermath of the act of admitting her for emergency treatment, and it did not govern the duties owed by the hospital once she was admitted to the hospital and placed under the care of physicians there. Once that happened, state medical malpractice law governed the actions of the hospital and doctors in their decision whether to transfer her to another facility. EMTALA enables hospitals to obtain stabilizing treatment for patients whom they are unable to stabilize because they lack the necessary resources. Specifically, EMTALA states in pertinent part, "Hospitals with specialized capabilities or facilities shall NOT refuse to accept appropriate transfers of individuals who require such specialized capabilities or facilities, if the hospital has the capacity to treat the individual." The purpose of this clause is to forbid hospitals to refuse patients on any rationale other than physician inability to provide the necessary care for the patient, or the hospital not having the "capacity" to treat the patient's condition. However, if the hospital is not on 'diversionary' status with its local EMS system, it is not at "capacity" by EMTALA standards. EMTALA Cases in the State of Georgia In the case of Stokes v. Candler Hospital, Inc. 216 Ga.App. 132, 453 S.E.2d 502 (1995), the Court of Appeals of Georgia held that a claim for damages under EMTALA is not made out solely by proof of an unfortunate result. They went on to say that EMTALA is intended not to ensure each emergency room patient a correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly provided to patients in similar medical circumstances. Moreover, if the emergency nature of the condition is not detected, the hospital cannot be charged with failure to stabilize a KNOWN emergency condition. The Eleventh Circuit Court of Appeals has similarly held in Holcomb v. Monahan, 30 F.3d 116 (11th Circuit 1994) that if a hospital applies the same screening procedures to indigent patients that it applies to paying patients, the hospital does not violate the section of EMTALA that requires hospitals to provide persons requiring emergency medical treatment with "appropriate medical screening examination". The "appropriateness" of the screening is not determined by its adequacy in identifying a patient's illness. See also, Harry v. Marchant 237 F.3d 1315 (11th Circuit 2001). Conclusion The law creates many difficulties for hospitals and emergency physicians. These include potential conflicts with on-call physicians, and managed care plans, as well as the potential for new civil liabilities, civil penalties, and disruptive investigations by federal regulators. Education, collaboration and guidance of expert legal counsel can help to resolve these issues. Tisinger Vance, P.C. has been successfully representing hospital Emergency Departments and Emergency Physicians for over 20 years. We have represented hospitals, Emergency Physicians and Attending Physicians in litigation involving interpretation of EMTALA. Additionally, we are a full service firm in the healthcare field, advising our clients not only in the field of Medical Malpractice but also in the areas of Healthcare Law which include setting up systems within the hospitals, and physician offices to address the modern issues of Risk Management, HCFA compliance, CLIA compliance and Peer Review. We currently represent Tanner Medical Center, Sumter Regional Hospital, West Georgia Medical Center Regional: The Medical Center, as well as Emergency Department Physicians across Georgia who are affiliated with national staffing companies. |
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