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WINTER 2003/2004 ISSUE NEW AND NOTEWORTHY* Julien Neals performed at "A Celebration of Lawyers in the Arts" on September 17, 2003. The New Jersey Law Journal sponsored the event to benefit Leadership Newark, Inc. The event was held at the New Jersey Performing Arts Center and featured the non-legal talents of lawyers from all across the State of New Jersey. Julien sang lead vocals and played bass with his group, "Nick Pablo Thang." * Ralph Lamparello appeared on Court TV on October 31, 2003, providing legal commentary with respect to the Robert Blake murder prosecution. Mr. Lamparello appeared on the program Open Court hosted by Roger Cossack. * Robert Kaye attended the October 2003 US Law Conference in Palm Desert, CA, sponsored by the International Conference of Shopping Centers. He was invited to head a breakfast roundtable discussion concerning developments in multi-jurisdictional practice and how they may affect lawyers serving clients in the shopping center industry. * On November 7, 2003, Peter Bariso, Jr. was a featured speaker at the New Jersey State Bar Association's Mid-Year Meeting 2003 at the Atlantis Resort on Paradise Island. The program was titled, "Professional Responsibility in New Jersey: Commentary and Tips." The other members of the panel included the Hon. John W. Bissell, Chief U.S. District Court Judge and New Jersey Superior Court Judges F. Michael Giles and Marie White Bell. * During the fall of 2003, Joel Leyner participated in a debate on capital punishment before the Hudson Inn of Court; was a panel member of the New Jersey Institute for Continuing Legal Education seminar entitled "Using Dispute Resolution in Medical Malpractice" at the Clarion Hotel, Edison, NJ; and was a featured lecturer in the Ethics Diversionary Program-Legal Education Seminar at the New Jersey Law Center in New Brunswick, NJ. * Ralph Lamparello was a speaker at the "Statutory Attorneys' Fees in Employment Litigation" seminar held at the New Jersey State Bar Association's Mid-Year Meeting in November at the Atlantis Resort on Paradise Island. The course was sponsored by the NJ State Bar's Labor and Employment Law Section and the Institute for Continuing Legal Education. CASENOTES* Joel Leyner, assisted by Georgea Tarachas Shikar, recently obtained a $650,000 settlement during the early stages of a medical malpractice trial in the Superior Court of New Jersey. The recovery was on behalf of a patient who sued her physician for injuries suffered arising from hip replacement surgery. . * On October 8, 2003, Peter Bariso, Jr. successfully argued before the Appellate Division on behalf of defendants/respondents in the matter of Murphy v. Smith. Respondents' brief was prepared by Cindy Vogelman and Catherine Gingeleskie, with Mr. Bariso as of Counsel. In an October 24, 2003 Opinion, the Appellate Division affirmed the jury verdict finding defendants negligent, but not the proximate cause of plaintiff's injuries. * On October 9, 2003, Mitzy Galis-Menendez obtained a defense summary judgment in U.S. District Court for the District of New Jersey on behalf of five North Bergen police officers. The officers had been sued for damages based on allegations they had violated the plaintiff's civil rights during his arrest. * Georgea Tarachas Shikar recently obtained a $95,000 settlement in an automobile personal injury matter for a plaintiff who suffered cervical and lumbar injuries after being rear-ended by the operator of a rental vehicle. On October 16, 2003, Kim Onsdorff successfully argued before a panel of arbitrators that a claimant had not met the injury threshold required under New Jersey law to pursue a claim for pain and suffering and permanent disability arising from an automobile accident. The arbitrators agreed with Mr. Onsdorff, deciding the claimant did not have any permanent injury. Our client, New Jersey Manufacturers Insurance Company, was relieved of obligations pertaining to this claim. * John Mallon successfully defended the owner of a Weehawken rooming house during a four-day trial in Hudson County. The plaintiff was alleging a partially severed thumb as the result of an alleged window defect at the house. The jury concluded that the landlord was not negligent. NEW JERSEY SUPREME COURT APPEARANCESTwo of our attorneys had the distinct honor of appearing before the New Jersey Supreme Court on November 17, 2003 on two different matters. John Mallon appeared in the matter of Buono v. Scalia after winning a summary judgment for the defendant at trial. The Appellate Division affirmed the case in a reported decision at 358 N.J. Super. 210. The New Jersey Lawyer featured this case in its November 17, 2003 issue. The case involves the issue of parental immunity for the alleged negligent supervision of a minor child. John Shahdanian II argued on behalf of the defendants in the matter of Velez v. City of Jersey City, et al. The State of New Jersey filed a motion to appear as Amicus Curiae in support of the position put forth by Mr. Shahdanian on a successful grant of a petition for certification. The question before the Court was the applicability of the notice provisions of the New Jersey Tort Claims Act to intentional torts alleged against public entity employees. These two matters were featured in the November 24, 2003 issue of the New Jersey Law Journal. FEDERAL PRIVACY RULE PROTECTS HEALTH INFORMATIONRecently, the first-ever federal privacy standards to protect individuals' health-care information went into effect. The mandate for these standards, collectively known as the Privacy Rule, was in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Privacy Rule gives individuals access to their medical records and greater control over the use and disclosure of their personal health information. States are still free to keep or adopt their own policies or practices that are at least as protective as the new federal requirements. Who Is CoveredEntities subject to the Privacy Rule include health-care providers, health plans (including insurance companies and HMOs), and health-care clearinghouses, such as physicians' billing services. The regulations also apply to "business associates," meaning any organization or person (other than a worker for a covered entity) that receives or accesses private medical information on behalf of a covered entity. When a covered entity uses a business associate, the two must enter into a written agreement containing specific protections for the health information used or disclosed by the business associate. On its face, the Privacy Rule does not directly apply to employers, but that is not to say that employers need not become familiar with its requirements. Employers frequently interact with covered entities and their business associates. In addition, employers administering their own group health plans are effectively brought within the reach of the Privacy Rule. Safeguards for IndividualsThe Privacy Rule applies to "protected health information" (PHI), defined as all individually identifiable health information held or transmitted in any form or media, whether electronic, paper, or oral. Individuals generally should be able to see and obtain copies of their PHI within 30 days of a request. Covered entities must provide a notice to individuals describing how their PHI may be used and informing them of their rights under the Privacy Rule. In the interest of promoting quality health care, providers are not restricted in their ability to share information needed to treat patients. Generally, PHI may not be used for purposes unrelated to health care. However, in the rare cases where it is allowed, only a minimum amount of protected information may be used or shared. Covered entities may release medical information to outside businesses such as insurers, banks, or marketing firms only with specific written authorization from the individual. The Privacy Rule gives individuals the right to request alternative means or locations for receiving PHI communications.
For example, a patient could ask a doctor to communicate with the patient through a designated telephone number or
address. Another reasonable accommodation might be sending medical information to a patient in a closed envelope rather
than on a postcard.
The Privacy Rule requires covered entities to set up policies and procedures to protect the confidentiality of PHI. Written
privacy procedures must identify staff with access to PHI and describe how such information will be used and when it may
be disclosed. There must be training of employees in privacy procedures and designation of an individual to be responsible
for insuring that those procedures are followed. Covered entities may continue existing disclosures of health information for certain public responsibilities, subject to
limits and safeguards that are specific to such circumstances. Examples include emergencies, identification of the body of
a deceased person, and public health needs. If there is no other law that mandates disclosure to meet a particular public
responsibility, covered entities may use their professional judgment to decide whether to make disclosures. The Government may impose civil penalties of $100 for each failure to comply with a Privacy Rule requirement. A penalty
may not exceed $25,000 per year for multiple violations of the same requirement in a calendar year. If a violation is due to
reasonable cause, involved no willful neglect, and is corrected within 30 days of when an entity knew or should have
known about it, no civil penalty may be imposed. A knowing violation of the Privacy Rule could also bring a fine of
$50,000 and up to a one-year prison term. Maximum criminal penalties are higher if the wrongful conduct involves false
pretenses, or use of the health information for commercial advantage, personal gain, or malicious harm. Stanley and his wife, Kay, owned and operated a travel agency. To facilitate the business of selling airline tickets, the
agency entered into an agreement with an airline ticket broker. The broker acted on behalf of airline carriers, issuing
tickets and collecting payments from travel agents. The travel agency maintained a trust account for holding customer
payments owed to the broker. Part of the deal was that the couple signed personal guarantees for any debts owed by their
agency to the broker.
When the travel agency began experiencing financial trouble, it also began to fail to deposit the proceeds of ticket sales
into the trust account. As the broker tried to draw from the trust account, the checks started to bounce. The agency's
fortunes continued to decline and it went into bankruptcy. The broker then sued Stanley and Kay on their personal
guarantees, claiming that, because the debtors had violated their fiduciary duty, the debt owed to the broker was not
dischargeable in bankruptcy. The Bankruptcy Code provides that a debt is not dischargeable if it is for failure to meet an
obligation while acting in a fiduciary capacity. In general terms, a fiduciary is one who undertakes to act primarily for
another's benefit, such as in managing money or property.
Stanley and Kay maintained that only their agency had a fiduciary duty to the broker, so that whatever debt they owed
because of the personal guarantees could be discharged in bankruptcy. A federal court disagreed. It was true that, by itself,
the fact that the couple had personally guaranteed the agency's debt to the broker did not put them in a fiduciary
relationship with the broker. The critical factor was that Stanley's and Kay's personal actions had created the debt owed by
the agency to the broker. They had withheld money that should have gone into the trust account and had depleted that
account to the point that checks were returned for insufficient funds. The court refused to allow Stanley and Kay to use
bankruptcy to avoid the consequences of their own misconduct.
If you want to stop the flow of unsolicited credit-card offers, there is a way. Under the federal Fair Credit Reporting Act,
consumers have the right to stop credit bureaus from providing their names and addresses for marketing lists.
As required in the federal legislation, the major credit bureaus have set up a toll-free number
(888-5-OPT-OUT--888-567-8688) that is required to be provided with the offer of credit. When you call, you can either
opt out by telephone for two years or request a form you can use to opt out permanently. By calling the same number, you
can also be put back on marketing lists after having been removed from them. In cases of joint credit, both parties may be
required to opt out before the solicitations will stop.
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