The Production From The Smith Center

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

In this installment, I’d love to talk about you…and how a great show just might move you, if you let it.

While I never expect it, every once in a while, a great show moves me so much that it shakes me to my core. Really. Live theater can wake up your emotions and cause you to experience wonderful things. It can take you back to childhood; remind you of special family memories; and elicit feelings of fear, longing, desire, grief, romance, happiness, and even love. Certain songs still take me back to high school. What about you?

The Smith Center presents a number of highly evocative shows. The beauty of art is that it causes you to think, it makes you feel otherwise deeply guarded feelings, and it can allow you to laugh, to cry and to experience the beauty of the human condition.

The magic of live performance is that you are there in the room with the actors experiencing their characters firsthand. Sometimes their story is one that particularly resonates with you, and sometimes you simply find a way to relate to them in a personal way

I hope that the next time you come to The Smith Center, you will get there a little early, have a refreshment, use the restroom before the show, relax, turn off all of your technology, and truly give yourself up to the experience. Imagine what might happen if you totally tune in. I’m a grown man who doesn’t hold back when a show moves me. I laugh, I cry and I don’t apologize for it. Giving yourself to a show may require a little more of your attention, but you may find that payoff is well worth the investment. Where else but live theater can this happen? Will it always happen? No way. Like the line from A Chorus Line, sometimes I feel nothing. Sometimes I can’t relate. But, wow, when it does happen, it’s amazing.

This also means that you, and those around you, must abide by the rules of theater etiquette. I admit that Las Vegas audiences still have a way to go, but we’re getting there. Steve Sebelius wrote an article for the Las Vegas Review-Journal that kindly started with, “Welcome to the theater, now shut up!” He had a point. This isn’t your den, and this isn’t Netflix. Please arrive on time and do your best not to talk or otherwise disturb your neighbors—especially in a theatrical production with deep dramatic tension. And do a little homework. Take a look at what you are coming to see and decide if you think it is appropriate for your kids. Sebelius wrote the following about music performances:

“Shut up: Seriously, this is basic. While somebody who has spent their life practicing the performance of music is on the stage, please be quiet. Don’t talk. Don’t yell, whistle or shout your approval. Don’t rustle your feed-bag. Don’t cough, if you can at all help it. Just listen and appreciate. And then, at the end of the song (not near the end, but after the song is over) signal your approval with applause.

Eat before you go: There are many fine restaurants in the downtown area at which you can eat before seeing a concert. Avail yourself of one of them, or eat at home. Then, come to the theater and practice a little abstinence. Yes, they do sell concessions at the theater and yes, they come in noisy little packages and yes, that’s inviting trouble. But just because they’re for sale doesn’t mean you have to bring them into the theater. A beverage (to sip silently) is fine. Anything else, wait for the end.

Shut up: Really, I can’t stress this one enough.

Remain seated and keep your hands and arms inside the train: If you must leave to use the rest room or take a phone call, please wait until a song or composition is complete, and the audience applause can cover your exit. The acoustics of the Smith Center are excellent…

Shut up: If you remember nothing else, remember this. Seriously.”

The Smith Center was built for the people of Las Vegas, and its ongoing mission is to inspire people through the grand gift of live performance. Take advantage of it. Bring a friend. And maybe, just maybe, the magic will happen and your life—at least in that moment—will be enhanced in a brilliant new way.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Avoiding The Crash & Burn

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

In this month’s medico-legal feature, VLM brings you the voices of three professionals in their fields who are experienced in spinal biomechanics, and low-speed and catastrophic crashes. Below, they share answers and insights about some common questions they’re asked, including the topics of bodily injuries, crash dynamics and accident reconstruction.

1. “How do airbags work and why do they deploy in some cases and not others?”

Almost all airbag-equipped vehicles contain an airbag control module. The module monitors various vehicle systems and has a predetermined threshold for deployment. (In simpler terms, this means the collision has to meet certain settings to deploy an airbag.)

While each car brand’s system is different from the next, the concept is the same: The module constantly monitors a vehicle’s speed, and when a collision occurs, the module can tell the change in speed is happening faster than if the car was slowing by brakes alone. IF the collision, as calculated by the module, is extreme enough, it will deploy the appropriate airbag(s). (Note: The module having the final say in why an airbag is deployed is truly vehicle-specific, as well as module software and hardware dependent.)

The module can know changes in the vehicle’s direction and speed via onboard accelerometers. The module constantly calculates these changes and when it “sees” a change beyond preset thresholds, it begins to monitor the changes very closely (this is called “algorithm enablement”). If the module determines the changes meet the criteria for airbag deployment, it will deploy the appropriate airbag(s).

Many vehicles also have failsafe sensors mounted in the vehicle that are designed as a secondary mechanical and/or electrical triggering system. These sensors are mounted on the front of the vehicle, usually under the radiator. When crushed or damaged, they force an airbag deployment.

Occasionally, someone will ask how a vehicle knows that a seat is occupied. (The driver’s seat is obvious, but beyond this, the front passenger seat has a pressure sensor that can tell when a predetermined amount of weight is on it, and in most vehicles, the rest of the seats use the seatbelt latch.) When you are driving, the module also monitors the status of seatbelts and the pressure sensors, and uses that data to make the best decision possible about which airbags to deploy and when.

2. “I got this collision expert’s report but there doesn’t appear to be any explanation for his findings. Is this normal?”

We are often asked about a specialist’s report, but the most common subset questions are about the lack of support for findings in the report. So we have chosen to address this question because it’s of personal and professional interest to us.

The answer to the above is both yes and no: Yes, it happens; and no, it’s not acceptable standard.

One of the reasons I (Patrick Sundby) have chosen to work with Dr. Bahoora and Dr. Studin is because of their tenacious commitment to research. If you have seen these doctors present, you know they have scholarly research to back up their points. Working with doctors that have been through accredited and standardized training based on a lot of scholarly research is imperative. All professional fields of postprimary education are based in accredited and scholarly formal standards. Collision reconstruction specialists are no different. While not necessarily part of an undergraduate or graduate program, the training and education they have is based on the same accredited and scholarly formal training and education. And because of this correlation, the same standard should be applied to collision reconstruction specialists.

Scholarly research is based on objective methods of testing and investigation, peer review, and rigorous scrutiny before being accepted. When an expert offers an opinion without citing supporting scholarly documentation, it’s not worthless, but rather it stands alone as opinion. Conversely, when an expert offers an opinion with appropriate supporting scholarly documentation, an opinion is accompanied by work, expertise, and research.

3. “Is the listed cost on the appraisal an accurate reflection of damage?”

An appraisal for repairs is often used to justify “low speed” in a low-speed crash by citing minimal costs; but there are a few points regarding them to consider.

Regarding the above, the short and easy answer is “no,” and the long answer starts with understanding who did the appraisal, and the background of the appraiser. Usually, appraisers are trained by the insurance company for whom they work. As such, minimizing the costs and expenses of repair is in the insurance company’s interest. Second, most appraisers do not disassemble a vehicle to determine if there is any hidden damage, particularly in low-speed collisions.

The next problem is that when replacement parts are needed, where should they come from? Original equipment manufacturer (OEM) parts cost substantially more than equal- or like-quality (ELQ) parts, which makes ELQ parts the preferred choice of insurance companies.

Along this same line, the quality of paint also varies. Paint manufacturers offer paint systems to meet OEM specifications and are very durable paints; however, they also offer more economically friendly paint that is not as durable or as closely color matched to the original. And as expected, it costs less.

The last problem to discuss is job downtime. The longer a vehicle is in for repairs, the more it costs the insurance company in rental fees. While a shop can, and will, have a minimum amount of time to fix the vehicle, the insurance company is going to keep it on a timeframe and constantly press for the vehicle to be completed. Sometimes that can create an environment where the repair facility will sacrifice quality of workmanship to complete the job faster for a better profit margin.

The above variables greatly dictate the final number, making it too subjective for a reliable point to support the threshold of injury. In other words, the use of “low cost” as a justification for no injury is not appropriate, as no causality relationship exists. If a breakdown of the repair bill is provided, you could objectively price the repair parts and effectively show the bias toward reducing the cost of the repair.

4. It is a common finding that whiplash patients suffer injury to their discs.Determining whether the pathologic disc is causally related to the whiplash becomes a concern in the medico-legal arena…which means that a common question we receive is, “How can you tell if the pathological disc found on MR imaging is directly related to the whiplash?”

Initially, the first step in determining the relationship between causality and bodily injury is to be certain that patients have a complete history taken, and that an examination is performed by a qualified health care provider that is trained in trauma care. Many practitioners are licensed to treat the trauma case, but many are ill equipped in training and experience and don’t have the credentials to ensure an accurate diagnosis as to determine proper relationship to causality.

Beyond radiating symptomatology—as Del Grande, Maus and Carrino (2012) have reported as an accepted parameter for determining herniation causality—it is important to realize that radiating clinical symptoms arising out of injury to an intervertebral disc are dependent on the anatomical positioning of the injured and inflamed disc material. It is only when the disc herniation is of a lateralized nature that the segmental nerve root is compressed or inflamed, producing radiation of axial symptoms to the corresponding upper or lower extremity.

To discuss radiation as a primary indicator of acute traumatic injury to the intervertebral disc omits central disc herniations, which alone do not typically produce extremity symptomology. When it comes to acute injury in the absence of radiating symptoms, local symptomatology should also be considered in approaching a mechanism and timing of the injury. Furthermore, one must also look at the morphology or architecture of the individual vertebrae as demonstrative evidence to age-date disc pathology inclusive of both herniations and traumatically induced directional, non-diffuse bulges as described by Fardon et al (2014).

Wolf’s Law, as described by Isaacson and Bloebaum (2010), is that “physical forces exerted on a bone alter bone architecture and is a well-established principle…” (p. 1271). This has been understood and accepted as a general principle since the late 1800s, and has been verified through the past century’s research inclusive of contemporary research. Simply put, if a bone has abnormal stresses, it will change morphology or shape within expected parameters. Since these changes are “expected,” the question becomes, “how does Wolf’s Law apply to traumatic external forces and acute disc injury, and how does this relate to causality?”

In order to fully understand the process, it is critical to understand the biochemical reaction (or functional adaptation) that occurs with abnormal stresses on bone…that centers on bioelectric changes that occur at the cellular level.

According to Issacson and Bloebaum (2010), when tissue is damaged, the injury potential creates steady local electric fields that result from ion flux—positive and negative charges moving through local cellar membranes—which is an integral part in the regeneration/remodeling of bony tissue. Bone remodeling is a tightly coupled functional system and is strongly influenced by age, activity level and mechanical loading. This functional adaptation of bone demonstrates the unique ability of bone to alter its trabecular (structural bone tissue) orientation as a result of loading conditions. According to Frost (1994), bone remodeling is a direct response to mechanical influences and strains on the osseous system. This can occur as a normal process to strengthen bone, or as a response to altered anatomy, biomechanics or direct traumatic injury. Since this is a predicable scenario, we can identify specific factors that will help us to determine whether the response was present over time or is at the beginning phase of remodeling. That is the fundamental basis for putting a causally related date to the injury.

5. Individuals suffer significant injury in crashes where there is low car damage. In such cases, it is common for MR imaging to detect significant disc pathology following these low-damage crash scenarios. A question for us then becomes: “How do low-damage crashes cause disc injury?”

Gathering a proper medical and crash-mechanism history is the initial step. In addition, forming a risk and causation analysis is essential in determining causality relative to bodily injury. This will also assist in determining the threshold some individuals hold for being injured with less trauma. Additionally, human risk factors for injury—which are quite extrinsic to the crash metrics—can often be more important predictors of occupant injury than the crash metrics themselves. It is not uncommon for one person in a crash to be injured and another person in the same vehicle to walk away unscathed. Clearly, both were exposed to the same crash metrics in terms of the vehicle’s speed change, impact, etc. But those factors by themselves are not sufficient to predict occupant risk. What we question in order to reasonably assess risk in a crash is position in the vehicle, the use of restraints, the role of awareness, age, sex, physical strength, size, health, prior injuries, and other factors. Analyzing risk in all cases is imperative, as it can confirm why significant injury can occur with fewer traumas.

With respect to causation and its relationship to disc injury with minor damage car crashes, a crashrelated injury causation analysis for a specific individual should also be performed by assessing the risk of injury from the collision and comparing it to the probability that the injuries or conditions would have been present at the same point in time if the collision had not occurred. This is called a relative or comparative risk analysis—also known as a “differential etiology” approach to causation—in which the most probable cause is selected among all competing causes. The analysis is accomplished via the application of crash reconstruction, biomechanical, medical, and epidemiologic (risk assessment) principles. The methodology for assessing causation of disc injury following low damage traffic crashes used here has been described in peer-reviewed literature, and has been deemed generally accepted by U.S. courts.

The three fundamental elements of an injury causation analysis are as follows:

1. Whether the injury mechanism had the potential to cause the injury in question; 2. The degree of temporal proximity between the injury mechanism and the onset of the symptoms reasonably indicating the presence of the injury; and 3. Whether there is a more likely alternative explanation for the occurrence of the symptoms at the same point in time.

Michael D. Freeman, Ph.D., MPH DC, a forensic epidemiologist, has documented that spinal disk injuries have been described in peer-reviewed literature as occurring at load levels similar to 3-4 mph rear impact collisions. (15,16) He goes on to state that studies of real-world (epidemiologic) crashes compared with medical findings indicate that at a 5-7 mph delta V (change in velocity); 35-47 percent of occupants will receive some degree of injury; 3.5-6.4 percent will develop long lasting (as in greater than 6 months) symptoms; and 2.5 -3.7 percent—or between 1 in 27 or 1 in 40— will demonstrate symptoms of a cervical spine disk derangement. (14)

An assumption is that insurance carriers simply don’t understand the concept of risk and causation, and will assume that an individual involved in a low-damage crash scenario simply can’t endure a spinal disc injury. The above-mentioned concepts confirm that this couldn’t be further from the truth.

We answer questions like the above every day and are available for your questions at any time. Our contact information can be accessed below.

Dr. Kenneth Bahoora has been a treating physician in Nevada for 18 years. He graduated from Life University in Atlanta, Geo., where he received his diploma as a doctor of chiropractic. He has received specialized knowledge with post graduate education in accident reconstruction, spinal biomechanical engineering, spinal MRI interpretation, MRI physics, providing impairment ratings utilizing AMA Guides 5th & 6th Edition, examining, and triaging the trauma patient, and neurodiagnostic interpretation protocols. He lectures to doctors and the legal community on subjects including but not limited to trauma and injury protocols and crash dynamics and the trauma victim. He can be reached for further explanation at kmbdc@elitechiro.net or 702.204.4240.

Patrick Sundby has decades of experience in the automotive industry including several years in law enforcement collision investigation. He has also been a driver training and firearms instructor in law enforcement, and a police officer for 9 years before specializing in accident investigations. He has had the privilege of participating in both learning and teaching at Prince William County Criminal Justice Training Academy in Virginia and studied at the Federal Law Enforcement Training Center in Georgia. His specialty is low-speed and catastrophic crashes and has testified over 500 times at various levels. He can be reached at 571.265.8076 or patrick.sundby@gmail.com

Dr. Mark Studin teaches at the doctoral level as an adjunct assistant professor of Chiropractic at the University of Bridgeport, College of Chiropractic, and an adjunct assistant professor of Clinical Sciences at Texas Chiropractic College. He also teaches at the graduate medical level as a clinical presenter credentialed by the Accreditation Council for Continuing Medical Education in Joint Sponsorship with the State University of New York at Buffalo, School of Medicine and Biomedical Sciences, along with being credentialed nationally for chiropractic post-doctoral education in a broad range of clinical subjects.

References: 1. Fardon, D. F., & Milette, P. C. (2001). Nomenclature and classification of lumbar disc pathology: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 26(5), E93–E113. 2. Fardon, D. F., Williams, A. L., Dohring, E. J., Murtagh, F. R., Rothman, S. L. G., & Sze, G. K. (2014). Lumbar Disc Nomenclature: Version 2.0: Recommendations of the combined task forces of the North American Spine Society, American Society of Spine Radiology, and American Society of Neuroradiology. Spine, 14(11), 2525-2545. 3. Brault J. R., Wheeler J. B., Siegmund, G. P., & Brault, E. J. (1998). Clinical response of human subjects to rear-end automobile collisions. Archives of Physical Medicine and Rehabilitation, 79(1), 72- 80. 4. Krafft, M., Kullgren, A., Malm, S., and Ydenius, A. (2002). Influence of crash severity on various whiplash injury symptoms: A study based on real life rear end crashes with recorded crash pulses. In Proc. 19th Int. Techn. Conf. on ESV, Paper No. 05-0363, 1-7 5. Del Grande F., Maus T. P., & Carrino J. A. (2012). Imaging the intervertebral disc: Age-related changes, herniations and radicular pain. Radiological Clinic of North America 50(4), 629-649 6. Issacson, B. M., & Bloebaum, R. D. (2010). Bone electricity: What have we learned in the past 160 years? Journal of Biomedical Research, 95A(4), 1270-1279. 7. Frost, H. M. (1994). Wolff’s Law and bone’s structural adaptations to mechanical usage: an overview for clinicians. The Angle Orthodontist, 64(3), 175-188. 8. He, G., & Xinghua, Z. (2006). The numerical simulation of osteophyte formation on the edge of the vertebral body using quantitative bone remodeling theory. Joint Bone Spine 73(1), 95-101. 9. Koehler S, Freeman MD. Forensic epidemiology; a methodology for investigating and quantifying specific causation. Forens Sci Med Path 2014 Jun;10(2):217-22 10. Freeman MD. Medicolegal causation analysis of a lumbar spine fracture following a low speed rear impact traffic crash. J Case Rep Prac 2015; 3(2): 23-29. 11. Freeman MD, Kohles SS. An Evaluation of Applied Biomechanics as an adjunct to systematic specific causation in forensic medicine. Wien Med Wochenschr 2011;161:1-11 12. Freeman MD, Centeno CJ, Kohles SS. A systematic approach to clinical determinations of causation in symptomatic spinal disc injury following motor vehicle crash trauma. PM R 2009;1(10):951-6. 13. 35 F.Supp.3d 1360 United States District Court, D. Colorado. Donald L. Etherton, Plaintiff, v. Owners Insurance Company, a Michigan Insurance Company, Defendant. Civil Action No. 10–cv–00892– PAB–KLM 14. Brinckmann P, Porter RW. A Laboratory Model of Lumbar Disc Protrusion. Spine 1994;19(2):228- 35. . 15. Freeman MD, Croft AC, Nicodemus CN, Centeno CJ, Welkins WL. Significant spinal injury resulting from low-level accelerations: A case series of roller coaster injuries. Arch Phys Med Rehab November 2005;86:2126-30. 16. Oppenheim JS, Spitzer DE, Segal DH. Nonvascular complications following spinal manipulation. Spine J. 2005;5(6):660-6. 17. Reliability is a metric based on epidemiologic study, from which the true and false positive rate of a test is derived. 18. Manchikanti L, et al. An update of the systematic appraisal of the accuracy and utility of lumbar discography in chronic low back pain. Pain Physician. 2013 Apr;16(2 Suppl):SE55-95. Review. 19. Carroll LJ et al. Course and prognostic factors for neck pain in whiplash-associated disorders (WAD): results of the Bone and Joint Decade 2000-2010 Task Force on Neck Pain and Its Associated Disorders. Spine. 2008;33(4 Suppl):S83-92. 20. Freeman MD, Centeno CJ. A fatal case of secondary gain; a cautionary tale. Amer J Case Reports 2008;9:97-103

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Death Of The Death Tax

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Chances are good that you were one of the 137 million taxpayers who filed an individual income tax return in 2015. In the same year, 11,917 estate tax returns were filed. Sometimes referred to as the “death tax,” this type of tax return is associated with wealthy individuals. By the end of this article (and regardless of your income level) everyone who reads it will understand more about the estate tax, who it affects, and issues with its currently proposed repeal (more on that below).

What Is Estate Tax?

The federal estate tax is a tax on the transfer of assets and property at one’s death. It is applied to decedents with gross estates in excess of $5.49 million for individuals, and $10.98 million for married taxpayers (those are the “Estate Tax Exclusions” for 2017). The asset composition of estates is typically a mix of stocks, real estate, bonds, small businesses, cash, pensions, and other retirement accounts. In 2015, stocks and real estate comprised over half of all asset holdings for estate tax return filers. Deductions from the gross estate are allowed and include funeral expenses, certain charitable contributions, administrative expenses, as well as others. The due date of the estate tax (IRS Form 706) is 9 months from the date of a person’s death. A 6-month extension to file is available if you are unable to file by the ninth month.

The modern estate tax began in 1916, and has had a history of repeals. In 2001, the tax was repealed and the result was a phase out of rates until 2010, when the tax was temporarily eliminated. The tax was reenacted in 2011 and 2012, with a 35 percent rate on estates exceeding $5 million. It was expected to return to the 2001 rates in 2013, but Congress placed a permanent 40 percent tax on estates exceeding $5 million, with the threshold indexed to inflation.

Historically, estate tax has been a hot political topic, and in recent presidential campaigns, Democrats pushed to increase revenue from estate taxes while Republicans promised to repeal it. In January 2017, House and Senate Republicans introduced two bills—H.R. 631, 115th Cong., 1st Sess. (Jan. 24, 2017) and S. 205, 115th Cong., 1st Sess. (Jan. 24, 2017)—to repeal the estate tax.

What Is The Controversy?The 11,917 estate tax returns filed in 2015 produced tax revenue of $17 billion…less than 0.6 percent of the total federal revenues that year. (To put that in perspective, the government brought in approximately $3.2 trillion in total revenue.) With individual income taxes representing $1.4 trillion, and payroll taxes accounting for $969 billion, why is so much attention given to such a sliver of proportional tax revenue? Proponents claim that the tax limits the concentration of wealth among dynastic families. According to PolitiFact, in 2011, the 400 wealthiest Americans had more wealth than half of all Americans combined. Since inherited wealth may be a factor in why many Americans who became wealthy have had a better start than the average person, income and wealth inequality in our country (they say) is a reason to continue implementing the estate tax. In addition, if the estate tax is repealed, the lost tax revenue may have to be absorbed by less wealthy taxpayers.

Alternatively, critics argue that it is a type of “double tax,” and that the assets an individual has accumulated in his or her lifetime have already been taxed in annual income tax returns. Critics further argue that the tax goes against U.S. free market principles: We live in a free country where people build businesses from nothing, yet when people pass the fruits of their labors to their heirs, the money gets hit with another hefty tax.

Estate Tax Today

During his presidential campaign, Donald Trump strongly advocated a repeal of the estate tax, and has proposed taxing pre-death appreciation in the capital assets of estates (subject to a $10 million exemption per married couple). It would mean that the person who inherited the asset would not get a step-up in basis to the fair market value at the date of death (which is what currently happens). Instead, the assets would transfer with the decedent’s original basis, and when the assets were later sold—whether on day one or 1,000—the beneficiary would pay a capital gains tax.

Long-term capital gains tax currently ranges from 15-20 percent (which is much better than the current estate tax rate of 40 percent). The problem, though, is determining what the decedent’s original cost basis is. Under the existing rules, stocks, real estate and interest in a business are all determined using current market values that are not difficult to ascertain. However, original basis in assets may be difficult or impossible to attain, resulting in possibly no-cost basis or low-cost basis, and thus higher capital gains.

Another challenge? Necessary tax planning would be automatically shifted to the beneficiary. In the case of an heir not having income or assets that can be used to satisfy a capital gains tax, whether or not the inherited assets would continue to receive a step-up in basis at the date of death would be a major point to consider as we watch the proposed repeal unfold.

The Future Of The Death Tax

Since the federal estate tax has a history of repeal followed by re-enactment, it is prudent to continue estate planning, or begin it from scratch. There are a number of tools that estate-planning attorneys employ to prepare for and mitigate the estate tax.. One such method called “portability” is a tax election that is available to an estate’s executor. Portability was created with the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, and it authorizes the executor to transfer any unused estate tax exclusion amount to the surviving spouse. The surviving spouse may apply this transferred exclusion against his or her estate tax liability. However, a situation may arise where the first spouse to die does not have an estate tax liability (e.g., if their gross estate is $2 million and consists mostly of publicly traded stock) and thus does not meet the filing requirement. If the decedent has $5.49 million – $2 million = $3.49 million in unused estate tax exclusion, that can be passed to the surviving spouse. Furthermore, suppose the surviving spouse lives another 20 years and the same stock grows to $15 million in value by the time of his or her death? The latter spouse could then use his or her exemption plus the $3.49 million. (Note: That could only be completed by making the portability exemption election by filing IRS Form 706 and completing part 6.) The point is, even if you think you may not be required to file a Form 706 estate tax return, and even if the tax is repealed, you may in a position where some inquiry and planning may be beneficial to you and your family

Making Your Estate Plans Accordingly

Many people wait until it is impracticable to estate plan, and unknowingly place a burden on the heirs, family, and sometimes employees of a company…providing no roadmap of how to navigate without the decedent. (Recall what happened to Prince last year when he unexpectedly died and left behind an estate worth between $100-$300 million, with no estate plan…not even a will.) Although Prince’s situation involved unusually massive wealth, it should be a cautionary tale for those who have yet to make a plan, or who feel that it is not necessary due to the promise of estate tax repeal by our new president.

Donovan Thiessen, CPA has worked with Gerety & Associates, CPAs in Las Vegas, Nev. for 9 years, focusing on trust and estate, and individual and business income taxation. The firm has substantial experience in estate planning and has the ability to handle complex transactions. You may reach Donovan at dthiessen@geretycpa.com. and 702.933.2213.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Status Of Raider Nation Relocation

With football season over, fans have shifted their attention to the ongoing saga of the potential move of the National Football League’s Raiders from Oakland to Las Vegas. In the last issue of Vegas Legal Magazine, we discussed the likelihood of Las Vegas becoming part of the NFL franchise. Everything seemed hopeful; but as with any change, chaos is almost always certain before acceptance. Since then, the ball has been rolling, although not in a direct path toward its goal. Here’s what Raiders Nation and the city of Las Vegas thinks about one of the most exciting and challenging relocations of a NFL team.

Bail Out from Big Investors

Anyone following the Raiders Nation relocation knows that major investors Sheldon Adelson and Goldman Sachs are out…but all is not lost. Vegas kingpin Adelson did provide vital political influence that dramatically helped the Raiders secure the world’s largest stadium public subsidy ($750 million); and since then, Raiders president Marc Badain told the authority board in February that the team was already in discussions with “multiple financial institutions” that are willing to fill the void left by Adelson’s departure.

Will The Bay Area Put Its Money Where Its Mouth Is?

The reality is that Alameda County politicians have shown no inclination to build the Raiders a new stadium, even after years of discussions. When the Raiders recently filed for permission to move to Las Vegas, in a statement that came close to puffery, Oakland Mayor Libby Schaff told the Sports Business Journal, “Oakland has something no other city ever will: a die-hard fan base that is loyal and true to the Raiders and wants to see them stay here in Oakland where they were founded. Only Oakland brings the Raiders and the NFL a competitive stadium proposal, along with legacy and loyalty.”

In the same interview, Schaff stated that the Oakland City Council had accomplished so much by identifying the mechanisms to responsibly finance public infrastructure improvements, including a private partner prepared to finance a new stadium. It is very unlikely that Mark Davis will allow this competition to occur, and the mayor more than likely knows this. Perhaps Oakland needs to create the impression that it did all it could to keep the Raiders, even if there is no way it will ever be able to do enough. At this point the Bay Area needs a Hail Mary to keep the Raiders in Oakland.

Vegas Mayor Supports the Raiders Relocation

Las Vegas Mayor Carolyn Goodman thinks the money will show. In a recent LA Times article, Mayor Goodman noted that the timing is right to bring an NFL team to the market, and stated that she let the Raiders know the city was doing everything in its power to help salvage the deal. She also told the LA Times that she would like a stadium built Downtown, and that she has received calls from several groups interested in helping finance the project.

“If there’s a team out there that wants to relocate and this one doesn’t work out, we’re ready,” said Goodman in the article. “In my opinion, it will happen.”

What’s Next?

Much like any good football game, the players and strategy are important to the outcome. The Raiders owner is highly motivated to move the team to Las Vegas and football fans in Las Vegas are open to the Raiders relocation. Some gripe that it will cause more traffic congestion, but Vegas has been through much worse. After all, Vegas is a city that has seen it all, from mobster-ruled casinos to the legalization of recreational marijuana. Sin City can handle anything that comes its way.

NFL owners will meet in March to vote on the Raiders relocation plan. Oakland will need 25 of the owners’ 32 votes to see their plan officially approved by the NFL.

Sabrina Siracusa is Las Vegas-based freelance copywriter. With an undergraduate degree in Psychology and an ABA Paralegal Certificate, Siracusa is currently the publications specialist for the State Bar of Nevada. Learn more about Siracusa and her work at http://www.writergirl.biz.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Preventing HIPAA Insult To Personal Injury

The Health Insurance Portability and Accountability Act of 1996, best known as “HIPAA,” is sweeping legislation that was originally passed to ensure health insurance coverage for workers and their families when they change or lose their jobs, but has become widely known for establishing national standards for the privacy and security of personal health information.

HIPAA represents one of the largest sources of regulatory liability, and has expanded as the data infrastructure in the healthcare industry has developed. For those businesses and professionals wholly in healthcare, HIPAA is an omnipresent and familiar reality. For many others, including personal injury attorneys, HIPAA represents a material but often overlooked, liability.

This feature elucidates the duties and associated liabilities of personal injury (PI) attorneys under HIPAA and other, similar regulations.

Health Records Held by PI Attorneys Are Protected Health Information PI attorneys collect and review evidence to determine the nature and extent of their clients’ injuries caused by a specific incident. This evidence includes the injured party’s medical records. Medical records are considered individually identifiable protected health information (PHI). These medical records, stored in the law offices, can, therefore, be classified as PHI under the definitions of 45 CFR §160.103.

PI Attorneys Are Business Associates If They Represent a Covered Entity/Business Associate When a covered entity (CE) shares PHI with PI attorneys during lawsuits involving medical/other professional malpractice (accounting for 15 percent of all such suits). While some may argue that the confidentiality of the PHI is maintained under the attorney-client privilege, guidance from the Department of Health and Human Services (HHS) requires the CE/BA put a Business Associate Agreement (BAA)

  1. It makes them business associates (BA) under 45 CFR §160.103.
  2. in place with its attorneys before revealing any PHI.
  3. The 2013 Final Rule and Business Associate Agreements Prior to the Final Rule, implemented in 2013, a CE was held liable for civil money penalties for the actions of its agent (the BA), acting under the scope of its agency.
  4. However, under the Final Rule, if a BA and CE sign a BAA, it changes the agency relationship to a contractual one.
  5. Therefore, in the event of a breach by the attorney (as an agent of the CE), all liability for civil money penalties would still shift to the CE except when the attorney breaches the BAA and does not take all the required precautions, resulting in the unauthorized disclosure of PHI, where the liability then remains with the attorney.

Duties under Security Rule:

The first duty imposed on both CEs and BAs under the Security Rule is to ensure the confidentiality, integrity, and availability of all electronic protected health information (ePHI) they create, receive, maintain, or transmit.

  1. This rule requires an entity to implement a plan for security risk management after conducting a cost-benefit analysis, of its ability to protect the ePHI.
  2. The firm must periodically review and modify this plan to continue to provide adequate protection for ePHI.
  3. The firm must appropriately sanction its employees who fail to comply with the security risk management plan.
  4. In addition, the firm must appoint a Security Officer who is responsible for the development and implementation of the security risk management plan.
  5. Employees who have access to the ePHI must only be given the minimum access necessary to complete their jobs.
  6. Finally, the firm must implement electronic safeguards like password monitoring, anti-virus software, remote/cloud server backups etc. which would assist in protecting the ePHI from cyber-attacks.
  7. Duties Under the Privacy Rule: The Privacy Rule requires a CE to obtain assurances from its BAs, in the form of a BAA, that they will appropriately safeguard the PHI in their possession.

13.  This Rule requires the BA to implement physical safeguards, data safeguards, and a ‘minimum necessary’ policy. A “minimum necessary” policy ensures that any use or disclosure of PHI must involve only the ‘minimum necessary’ PHI to fulfill the required task.

Duties under the Breach Notification Rule:

A BA, like a PI firm, must notify the affected persons, the media, the covered entity, and the Secretary of the HHS, in the event of a breach of PHI/ePHI. 45 C.F.R. §164.402 defines “breach” as an unintended or inadvertent disclosure of PHI by a workforce member which compromises the security and/or privacy of the PHI.

  1. Unauthorized disclosure of the PHI is presumed to be a breach unless the breached firm can show a “low probability that the PHI has been compromised.”

Enforcement of Duties:

A violation of HIPAA Rules invites an audit by the HHS. If the firm fails the audit, then the HHS proceeds to impose civil money penalties. In the past, civil money penalties were only imposed on CEs, despite the implementation of the Final Rule. On June 29, 2016, OCR announced that it settled potential HIPAA Security Rule violations with Catholic Health Care Services of the Archdiocese of Philadelphia (CHCS), a BA of nursing homes. The alleged violations stemmed from the theft of a mobile device, affecting the electronic protected health information (ePHI) of 412 individuals. The BA agreed to pay a $650,000 resolution amount, and enter a corrective action plan. This settlement is expected to be the first in a long line of enforcement cases from the OCR, in its crackdown on negligent conduct by BAs which has led to widespread PHI breaches in 2016.

PI Attorneys Representing Individuals Are Responsible for Protecting PHI Under State Law and Model Rules of Professional Conduct PI attorneys who are performing services on the behalf of the patient (here, the personal injury plaintiff (“PIP”)) are not considered business associates under HIPAA/HITECH

  1. But they are still governed by the Nevada Revised Statues (NRS) and the Model Code of Professional Conduct. Attorneys representing PIPs typically receive PHI from the PIP after the PIP has authorized such disclosure by signing a comprehensive retainer agreement and an HIPAA authorization form.
  2. Duties of PI Attorneys under the NRS as PI attorneys are data collectors under NRS §603A.030, they have a duty to protect the PHI from unauthorized access, acquisition, destruction, use, modification, or disclosure.

17. PI attorneys also have the duty to implement reasonable security measures to protect PHI from bad actors.18 If PI attorneys use an outside resource for their data storage, the outside resource must also be contractually obligated to the PI attorneys to implement similar security measures for protection of the PHI.

  1. The NRS requires that ePHI be encrypted before electronic transmission to ensure its security.
  2. The PI attorney is liable if the PHI’s security/privacy is breached, either due to their gross negligence or intentional misconduct.
  3. In the event of a breach, the PI attorney may be liable for civil damages.
  4. If the PI attorney was either involved in the breach or profited from it, they may also be liable for restitution.

23. Duties under the Model Rules of Professional Conduct

Both the NRS and the Model Rules of Professional Conduct place an affirmative duty on the PI attorney to not just protect their clients’ PHI, but also to take reasonable steps, including encryption, to prevent unauthorized access to the PHI when it is either at rest or in transmission. If the attorney is either negligent or malicious, he or she stands to face penalties under both regulations, including disciplinary action levied by the Office of Bar Counsel.

Conclusion

Most attorneys to whom these restrictions apply are wholly unaware of their responsibilities, their risk of breaching them and the penalties and liabilities for doing so. Parsing the black-letter law can be challenging for the PI practitioner. If you have identified liability in the quick summary provided here, or if you are unsure about your liability, a quick chat with healthcare counsel who works on these matters daily will help you understand the scope of your obligations and whether you have any compliance work to do.

Glenn H. Truitt, Esq. is a managing partner at Ideal Business Partners (www.idealbusinesspartners.com), a multidisciplinary professional services firm serving healthcare professionals with state-of- the art legal, financial, compliance and strategic advice, working together to lift up their practices. IBP consults with ComplyPro (www.mycomplypro.com), an HIPAA compliance services company, serving Nevada and southern California, and employing both traditional and digital compliance tools to develop comprehensive, customized compliance solution for any size practice.

Malvika Rawal, Ph.D., J.D., is a law clerk at Ideal Business Partners. She received her Master of Science at the University of Delhi in Biomedical Sciences and her doctorate degree in Free Radical and Radiation Biology at the University of Iowa. She then received her Juris Doctor at the University Of Iowa College Of Law in May 2016. Rawal is deeply involved with ComplyPro, a HIPAA compliance services company.

1. Demetrius Cheeks, 10 Things You Want to Know About Medical Malpractice, Forbes, May 16, 2013, http://www.forbes.com/sites/learnvest/2013/05/16/10-things- you-want- to-know- about-medical-malpractice/#1d3ce3a32323

2. A business associate agreement (BAA) is a written contract between a CE and a BA, which helps to assign specific duties and liabilities to the BA.

3. Per a complaint investigated by the Office of Civil Rights (OCR), there was an allegation of unauthorized disclosure of PHI to a law firm during its representation of a pharmacy in an administrative proceeding. The OCR, in its investigation, did not find any impermissible disclosure of PHI, but determined that the pharmacy chain and law firm had not signed a Business Associate Agreement, as required by the Privacy Rule of HIPAA. The OCR required the pharmacy chain and the law firm to enter into a BAA. http://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/examples/allcases/index.html#case20;

See Dicta from Wooten v. United States HHS Office of Civil Rights 2011 WL 536448, at 6-7 (S.D.N.Y. February 15, 2011).

  1. 42 U.S.C. § 1128A(l)
  2. 78 Fed. Reg. 5565, 5581 (Jan. 25, 2013)
  3. 45 C.F.R. §164.306(a)(1)
  4. 45 C.F.R. §164.306(b)
  5. 45 C.F.R. §164.306(e)
  6. 45 C.F.R. §164.308 (a)(1)(C)
  7. 45 C.F.R. §164.308(a)(2)
  8. 45 C.F.R. §164.308(a)(3)
  9. 45 C.F.R. §164.308(a)(5)
  10. U.S. Department of Health and Human Services: National Institute of Health. HIPAA Privacy Rules: Information for Researchers. To Whom Does the Privacy Rule Apply and Whom Will It Affect? https://privacyruleandresearch.nih.gov/pr_06.asp
  11. 45 C.F.R. §164.402(1)
  12. 65 FR 82462, 82476
  13. A Sample HIPAA Authorization Form, https://www.athenaeum.edu/pdf/free-hipaa- release-form.pdf.
  14. NRS §603A.210.1
  15. Id.
  16. NRS §603A.210.2
  17. NRS §603A.215.2(a)
  18. NRS §603A.215.3
  19. NRS 603A.900
  20. NRS §603A.901

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

The Value In Owning Your Own Office

If you own your practice, there are few things that will impact your future net worth more than owning your office.

Think about it. In the next few years, you could own sizable equity in your office. In 15 years, you could own it outright — or you could be the proud owner of a big stack of rent receipts. The good news is that, with a little bit of preparation, the process of buying an office is easier than ever.

There is a growing trend across the country in which buyers turn to Real Estate brokers who not only guide the buyer through the transaction to closing, but also help in arranging tenant improvements. That serves a critical need when the inventory available needs major renovation to fit the client’s needs.

Dan Coletti of Sun West Custom Homes is one of Nevada’s most respected builders. His long history of building includes not only iconic multimillion-dollar hillside homes but also a significant amount of commercial construction.

“There are a lot of very attractive buildings downtown if you have an eye for the possibil-ities,” Coletti said. “We see some interiors gutted and reworked, and these buildings are perfectly suited to attorneys’ business needs. With the right eye for design and construction details there really are opportunities an owner can really be proud of.”

(Point of disclosure: Mark Fierro, the author of this column, is an agent with a related company, Sun West Luxury Realty LLC.)

There is good news on the loan side as well. The Small Business Administration offers a loan, the SBA’s 504 program, which allows the owner to wrap all the tenant improvements and building rehab right into the loan.

A generation ago Small Business Administration Loans had a reputation for not being user friendly, but those transactions have been made far simpler with help from Nevada State Development Corporation, which specializes in SBA 504 loans for business owners seeking to buy property or equipment.

“These loans typically feature below-market rates. In the first quarter of 2017 we are in the mid-4 percent range, and that’s with 10 percent down,” said Evan Dickson, Senior Vice President/Senior Credit Officer with Nevada State Development Corporation. “We can get the customer in, ask a pretty short list of questions regarding your business and its performance over the past couple of years, and give you a pretty good idea whether the SBA’s 504 program is a good fit for you and if it looks like you’ll have a chance to qualify.

Taking advantage of the opportunity to own their own headquarters can represent a pivotal point in the career of many entrepreneurs, according to Dickson. It’s something he sees time and time again working with Nevada State Development Corporation.

“That’s what we do,” Dickson said. “The basis for our program is about job creation and economic development, and one of the results is the fact that it lets businesses purchase property with as little as 10 percent down, which can allow the business and its owners to start accumulating wealth by taking ownership of a building. We can wrap tenant improvements into the package, subject to a satisfactory appraisal”

It’s a road that the Editor of this magazine, Vegas Legal Magazine, used to great effect in buying and completely renovating his offices at 630 South 3rd Street in downtown Las Vegas.

NSDC’s Paola Gonzalez worked with Preston Rezaee, Esq., principal of The Firm, P.C., and Editor in Chief of Vegas Legal Magazine to make his renovations and the purchase of his new office in downtown Las Vegas a success.

“NSDC is a company that’s very vested in investing in the business future of this com-munity,” Rezaee said. “The level of personal attention that I received was unexpected, so definitely go.”

Chris Hunter, who serves as vice president and business development officer with NSDC, pointed out that many business owners — whether in the legal realm or any other field — may be experts in their own line of work but unfamiliar with the nuances of financing a building purchase.

“We walk them through every step of the process, laying out the financials up front to make it as easy as possible,” Hunter said. “We explain it in terms they understand. My job is to make life easy for them.”

About Fierro Communications, Inc.

Fierro Communications, Inc., is a full-service public relations and marketing firm with video production assets and a wealth of media contacts in Southern Nevada and throughout the United States. Mr. Fierro is an author of two books and has appeared on national news broadcasts including CNN, “Entertainment Tonight” and ABC’s “20/20.”

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Tips For A Successful Surgical Outcome

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine

Are you or someone you know considering spine surgery? Spine surgery is a big decision that comes with a lifelong commitment to the risks and results of the procedure. This article sheds light on a basic preliminary checklist that I would recommend to my patients or my family members before going under the knife.

Know Your Options

Your surgeon should identify the source of your complaints. Adults often have multiple MRI findings that are not causing pain, and a true diagnostician must identify which of the findings, if any, are generating pain in your spine. Patient complaints and their physical examination findings must be used in conjunction with imaging findings to clinically correlate the root of the patient’s pain. Many disc bulges cause pain and many do not. To simply operate on a disc bulge because it exists would lead to unnecessary surgeries with most likely poor outcomes. Surgical outcomes are improved by identifying the correct problem, performing the best procedure for that problem, and performing that surgery well. After history and physical examination are performed, to a varying degree, surgeons will order x-rays, MRIs, CT scans, nerve studies, diagnostic injections, and discograms. Make sure your surgeon has enlisted a comprehensive complement of diagnostic testings to corroborate clinical diagnoses to give him or her a solid foundation upon which to recommend a surgery and give you the reassurance that the surgery is likely to improve your condition. Although there are no guarantees with surgery, identifying the pain generator will improve the likelihood of success.

Know Your Surgeon

Surgical qualifications are variable amongst specialists. Many patients are not aware that board certification is not required to perform surgeries. Board certification is independent from state medical licensure. Please inquire with your surgeon to identify if they are currently board certified.

Fellowship training provides high-level specialization, which often translates into better outcomes and lowered complications. Please identify if your surgeon has successfully completed fellowship training in spine surgery. Patients may want to inquire how long their surgeon has been performing surgeries, how often they perform surgeries, and what percent of their practice is related to spine surgery as opposed to general orthopedics or neurosurgery.

Know Your Procedures

Knowing everything you can about your surgeon is as important as doing your homework about the types of procedures available to you, such as minimally invasive techniques. Not all spine surgeons perform minimally invasive techniques, although some perform minimally invasive techniques occasionally and some are very adept in minimally invasive and cutting-edge technology. Patients might benefit from knowing how many minimally invasive techniques their surgeon has performed; for what duration of their career they have performed them; and if they, in fact, train other surgeons to perform minimally invasive surgeries. Minimally invasive surgeries are newer developed techniques which often improve surgical success, lower complications, limit exposure to hospital stays, reduce blood loss, reduce infections, improve speed of recovery back to work and life, and decrease rehabilitation time while maintaining muscular tissue and muscular strength. The world has been gradually moving more toward minimally invasive techniques in most specialties, particularly spine. Please do not miss the boat.

Know Your Rights

Once surgery is performed, there is no undoing the surgery, which means patients are always welcome to a second and even third opinion regarding spine surgery. Please make sure you feel comfortable with your spine surgeon as your compassionate physician and as your surgical technician. If your spine surgeon is defensive about getting a second opinion or adamant that it is their way or the highway, you might want to get off at the next exit…literally and figuratively. Exploratory surgery is not optimal. With 2017’s sophisticated technology, physicians should be able to identify the source of the pain before going into surgery. Although surgery may reveal things undetected by diagnostic studies, performing surgery for the basis for learning the source of pain is guarded against.

If your spine surgeon corners you with multiple PAs, medical assistants and staff in a small room with a closed door with a consent form—making you feel like you are at a high-pressure sale after your introductory visit to a new gym—break out of the office and get to another spine surgeon.

Know About Elective Spine Surgery

Elective spine surgery is rarely curative. Often, patients might experience incomplete relief, or future pain may result in the same area due to adjacent level stresses and eventual breakdown of spinal structures. Please understand appropriate expectations without any sugar coating so you know what you are signing up for.

Elective spine surgery generally follows conservative measures like physical therapy, chiropractic and therapeutic injections. Please allow a sufficient amount of time to see if conservative measures work for you. Elective surgery is generally held as a last resort. As I said earlier, once you undergo surgery, you cannot undo the decision.

Please have your surgeon explain why surgery is a reasonable option and provide any non-surgical options. Generally, the non-surgical options include physical therapy, chiropractic, medication management, therapeutic injections, and the decision to live with the pain without any other measures

Know When You Feel Good About Your Decision

When you are being recommended surgery, your surgeon should be able to unquestionably tell you that he or she would recommend this surgery for the same condition in one of his or her family members. Similarly, if your surgeon provides you another surgeon’s name for a second opinion, make sure this referral would met the same standard as one for the surgeon’s family members. .

The old adage that there is more than one way to skin a cat sometimes applies to surgical approaches. When your surgeon recommends a particular procedure, ask if there are different approaches and if there are variable surgical techniques to “get the job done.”

Andrew M. Cash, M.D., is a board-certified, fellowship-trained orthopedic spine surgeon specializing in neck and back care with a focus on minimally invasive operative treatments. His practice—Desert Institute of Spine Care—is located at 9339 West Sunset Rd., Suite #100, Las Vegas, NV 89148. For more information, visit http://www.disclv.com or call 702.630.3472.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.