November 29th, 2007

Random Notes

Random notes will be for subjects that I want to blog about or things that need a bit more broadcast, but I just don’t have the time for a separate post. They will appear on a, you guessed it, random basis:

And as a follow-up to the marathon Blawg Review, one last video:

 

November 29th, 2007

New York Doctor Caught Reusing Syringes in Multi-Dose Vials

Out on Long Island, the name Harvey Finkelstein is now widely known. The anesthesiologist has been the subject of several articles this past week concerning a three-year investigation that revealed he had potentially exposed hundreds of patients to blood-borne diseases by routinely reusing syringes in multi-dose vials. This exposed patients to Hepatitis and HIV/AIDS.

While Finkelstein used only one syringe per person, he would stick the syringe into a multi-dose vial that would also be used by others, thereby contaminating the remainder of the vial.

Aside from the conduct of the doctor, this story has a kicker: The state’s investigators waited three years to let patients know, sending out 628 letter just this past week. Why is that significant? Two reasons, one medical and one legal.

First, and clearly of paramount importance, if someone was infected they didn’t get prompt treatment. Second, because the statute of limitations in medical malpractice in New York is 2 1/2 years, those that may have been infected not only didn’t learn about it in a timely manner, but may not be able to institute legal action to redress their grievances. In New York, the statute of limitations is not governed by when the negligence was discovered, but by when it happened or by end of the continuing treatment by that physician.

In today’s news, Newsday writes of the secret procedures in New York that keep disciplinary issues as far from the public eye as possible. New York, it seems is one of only five states out of 42 that were surveyd last year in which no parts of the proceedings were public. From the article:

It is among a handful of states that conducts the entire probe in private and withholds a doctor’s name unless the complaint is upheld. And even after an investigation is concluded, doctors are not required to notify patients if they are practicing under sanction. What information is available is found on a state Web site that critics argue few people know about.

The entry on the Office of Professional Medical Conduct Web site about Finkelstein is this: “Nondisciplinary order of conditions issued pursuant to New York State Public Health Law Section 230. for three years including conditions relating to infection control.”

Well, that description tells you a lot, doesn’t it?

Finkelstein, by the way, has had 10 malpractice settlements. That makes him one of 127 of New York’s 70,000 physicians with a similar history.

See also:

(Eric Turkewitz is a personal injury attorney in New York)

 

November 28th, 2007

Vote For Me In Blawg 100!! (Oh Wait, You Can’t)

I’d like to tell you to vote for me in the latest law blog popularity contest. After all, it’s being run by the ABA Journal so it has to be prestigious, right?

But I can’t tell you that. Because I wasn’t nominated. Nor, for that matter, was any other law blog devoted to personal injury law.

Maybe personal injury blogs all stink? Maybe we don’t discuss enough law, or have enough visitors? Perhaps all the blogs are poorly written? I mean every last one. Perhaps the bloggers really aren’t worthy of mention? How else can an entire field of law be ignored?

So let’s take a short look:

You would think that, with so much noise being made about the need for tort “reform” because personal injury suits are so problematic, there would be at least a few blogs devoted to that subject as part of the top 100.

But if you thought that, you would be wrong. It’s not a question of one blog being picked over another since this is, after all, just another vanity contest that small niche blogs don’t have a shot of winning. No, the significant thing is that the vaunted American Bar Association simply doesn’t think that this field of law is relevant. The decision to ignore a vast segment of the law speaks volumes about the organization.

[Addendum: The “ABA Mission” is at odds with their exclusionary choices:

The Mission of the American Bar Association is to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law.]

OK, short rant over. Cue Rodney…

Links to this post:

Why Big Firms Don’t Blog Well: Not Too Much Risk, But Too Little
Chalk one up for the solos and small firms. For what it’s worth, we dominate the ranks of the Third Annual ABA Blawg 100. By contrast, only two large firm blogs made the cut, Mark Herrmann observes at Drug and Device Law,

posted by [email protected] (Carolyn Elefant) @ December 03, 2009 10:11 PM

law bloggers respond to aba blawg 100 post
our post last month commenting on the aba journal’s blawg 100 has generated some serious discussion around the blogosphere. legal bloggers from across the spectrum have offered their two cents on the issue, each offering a very

posted by [email protected] (Rob La Gatta) @ December 17, 2007 1:30 PM

aba journal “blawg 100” controversy
the selection of sites, as well as the whole traffic-building beauty-contest genre that it may be seen as typifying, has stirred up a considerable volume of discussion: see giacalone, elefant, the unaccountably omitted turkewitz,

posted by Walter Olson @ December 04, 2007 12:38 PM

“best of” lists: the unbearable truth bared
in the wake of the controversy (see, eg., kevin o’keefe, eric turkewitz, and carolyn elefant) created by the recently-announced “the aba journal blawg 100” list of the “best web sites by lawyers, for lawyers” (featured in our prior

posted by David Giacalone @ November 30, 2007 2:03 PM

We Agree With A Plaintiff’s Lawyer!
We’re not quite as outraged as you are, Eric Turkewitz, but we agree with you. And, if we agree with a plaintiff’s lawyer, that’s news that’s fit to print. (The issue has to do with a list of top legal blogs. Click through here only if

posted by Beck/Herrmann @ November 29, 2007 10:21 AM

UN-AMERICAN
I just found out that this blog was left out of the ABA Journal’s Blaw 100. It has become clear to me that the ABA has been taken over by communists, hell bent on destroying our American way of life. As you all know, it never starts as
posted by . @ November 28, 2007 10:06 PM

 

November 27th, 2007

NY Court of Appeals Allows Defendants to Privately Question Plaintiffs’ Doctors

In a major decision today from New York’s highest court, defendants have been granted permission to privately interview the treating physicians of personal injury plaintiffs after the close of discovery. In permitting this, the Court appears to have cast aside the privacy provisions of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The decision in Arons v. Jutkowitz is expected to open a small floodgate of attempts by insurance companies and defense lawyers to privately approach treating physicians without the knowledge or permission of the patients and take statements without their counsel or any court reporter being present.

The conservative Judge Read, writing for the majority, concluded that plaintiffs can be forced to sign HIPAA compliant authorizations to allow the interviews. Because this will be done outside the formal deposition process, however, the usual safeguards regarding relevance and accuracy are no longer in place.

So how does the court reconcile the privacy that HIPAA affords with its determination to allow private interviews? While some medical conditions are certainly waived by bringing suit, others may not be. The solution, according to Justice Read, is to simply trust the defense lawyers. Justice Read wrote with regard to the HIPAA issue:

“it is of course assumed that attorneys would make their identity and interest known to interviewees and comport themselves ethically”

So that’s it. Congress’s attempt to safeguard medical privacy by statute has now been overruled by New York’s Court of Appeals. If a passenger in a car accident brings lawsuit regarding a broken hip, for instance, the privacy of the person’s unrelated drug, pregnancy or psychiatric history is no longer protected by federal statute. It’s only protected by trusting the lawyer defending the case for the insurance company. HIPAA is gone.

The dangers and risks of this decision will now play out over the next several years, as doctors are informally interviewed and then confronted with statements at trial that they claim were never made or were taken out of context. It will also come up when doctors are interviewed and questioned about facts that may be wholly unrelated to the injuries in question and still protected by HIPAA.

This is a bad decision that will inevitably result in a mountain of litigation. And given the apparent challenge and conflict to the federally mandated HIPAA, I am left to wonder if an appeal to the US Supreme Court will be attempted.

Justice Piggott, writing in dissent about the judicial activism of the majority, addressed the procedural discovery process we have in New York:

Our holding today grants defense counsel the unprecedented ability to compel a plaintiff, who has placed his or her mental or physical condition in controversy, to execute authorizations allowing defense counsel to speak to his or her treating physicians outside the formal discovery process and without the plaintiff being present…it is “beyond cavil” that “neither the machinery in CPLR Article 31 nor the applicable Uniform Rules [for New York State Trial Courts] provide for the disclosure of this nature.”

(Eric Turkewitz is a personal injury attorney in New York)
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Addendum:

Links to this post

a divisive decision — arons v. jutkowitz & kish v. graham
most of you have already trudged through the new york court of appeals’ 32-page decision in arons v. jutkowitz and kish v. graham. for those who didn’t, the court held that defense counsel may conduct an ex parte interview with aa

posted by Matt Lerner @ December 09, 2007 5:09 PM

a divisive decision — arons v. jutkowitz & kish v. graham
most of you have already trudged through the new york court of appeals’ 32-page decision in arons v. jutkowitz and kish v. graham. for those who didn’t, the court held that defense counsel may conduct an ex parte interview with aa

posted by Matthew Lerner @ December 05, 2007 9:46 PM

New York, New York! (Arons allows ex parte interviews of treaters)
We love it when courts agree with us. (And don’t say, “Because it happens so rarely.”) We posted in February that HIPAA does not preempt state laws that allow defense counsel to speak informally (and without plaintiff’s counsel present)

posted by Beck/Herrmann @ December 04, 2007 9:16 AM

hipaa goes dark in new york
well, broadway is still dark this week, and it seems the judges of the new york court of appeals don’t want the courts of the empire state to do much work either — at least not the sort of work that entails thinking hard about whether

posted by David Harlow @ November 28, 2007 9:27 AM

“NY Court of Appeals Allows Defendants to Privately Question
“NY Court of Appeals Allows Defendants to Privately Question Plaintiff’s Doctors”: Eric Turkewitz has this post at the “New York Personal Injury Law Blog.” You can access today’s ruling of the New York State Court of Appeals — that

posted by @ November 27, 2007 2:40 PM

hipaa release scare tactics by settlement professionals have no
one structured settlement professional has been advertising that it has language to put into a hipaa release that purports to limit the distribution of a plaintiff’s medical records in such a way to prevent the defendant from obtain
posted by structuredsettlements @ January 14, 2008 1:36 AM