Albany New York Defense Law Firm: O'Connor, O'Connor, Bresee & First, P.C.

The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009.  The new provisions address the privacy and security concerns associated with the electronic transmission of health information, in part, through several provisions that strengthen the civil and criminal enforcement of the HIPAA rules.  

Previously, HIPAA’s strict confidentiality and computer security requirements applied only to covered entities (defined as a health plan, a health care clearinghouse, or a health care provider who transmits any health information in electronic form in connection with identified transactions), which could choose to enter into “business associate agreements� with any company to which they disclosed patient or employee health information. These business associates (defined as an individual or corporate person that performs on behalf of the covered entity any function or activity involving the authority to access, maintain, retain, modify, record, store, destroy, or otherwise hold, use, or disclose protected health information) promised the covered entity that they would keep the patient information confidential, but were not directly subject to HIPAA’s regulations or penalties. 

Under the recent HIPAA amendments, effective, February 17, 2010, HIPAA’s security requirements and financial penalties apply directly to both business associates and covered entities.  As a result, business associates must now comply with HIPAA’s strict confidentiality and computer security requirements. Violators are subject to a tier of penalties imposed by the Secretary of Health and Human Services, with a maximum fine of $1.5 million if the violations are willful and continue for more than 30 days.

 

Please find additional information at, www.hhs.gov

            In Begor v. Holmes, 2010 Slip Op. 00324 (3d Dept. Jan. 14, 2010), claimant was injured in a logging accident while employed by Four Seasons Logging (Four Seasons) and later died from complications of his injuries.  The general contractor of the project, Brenner & McHugh entered into a subcontract with Mid Hudson Hardwood (Mid Hudson).  Mid Hudson in turn, subcontracted with the claimant’s employer, Four Seasons. 

            At the time of the accident, Mid Hudson’s human resource functions were managed by Hudson Valley Staff Limited (Hudson Valley).  Under this arraignment, Hudson Valley selected employees and leased them back to Mid Hudson.  Mid Hudson’s leased employees were covered by a workers’ compensation policy obtained by Hudson Valley and issued by American Zurich Insurance Company (Zurich).  The policy provided coverage for only those employees leased to but not subcontractors of Mid Hudson, including claimant.

            The court determined that Mid Hudson had exposed itself to workers’ compensation liability by subcontracting work to Four Seasons, which had no coverage.  The court noted that Workers’ Compensation Law Section 56 places liability on the contractor nearest in the chain to the uninsured employer in order to encourage contractors to employ only those contractors who have workers’ compensation coverage, or face the financial risk themselves.  Therefore, under the clear language of Workers’ Compensation Law Sections 54(4) and 56, Mid Hudson, as the nearest insured subcontractor to Four Seasons was liable to claimant.   

            In Delta Financial Corp. v. Morrison, 2010 Slip Op. 00216 (2d Dept. Jan. 12, 2010), defendant’s attorney asserted that 55 e-mails were protected from disclosure by the attorney-client privilege, a litigation committee privilege, and/or a common interest privilege. After an exhaustive in camera review of those 55 e-mails, the Supreme Court determined that the attorney failed to satisfy his burden of establishing that the documents contained confidential communications between an attorney and a client during the course of professional employment for the purpose of obtaining legal advice or services and that they were primarily or predominantly of a legal, rather than a business nature.  Thus, the court imposed sanctions, pursuant to Title 22 of the New York Compilation of Codes, Rules and Regulations, Section 130-1.1(c)(1).

The Appellate Division determined that the lower court providently exercised its discretion in imposing a sanction against the attorney, because his claim that the 55 e-mails were privileged was completely without merit and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.

            The Appellate Division, Third Department, determined that maintenance personnel, Vincent Meyers, employed by defendant owner/landlord of two-family home, did not have speaking authority in which to find his statement admissible as a party admission. 

            In Raczes v. Horne, 2009 Slip Op. 09590 (3d Dept. Dec. 24, 2009), plaintiff asserted that while descending the apartment stairs, the railing she was holding pulled away from the wall, causing her to fall down the stairs and sustain injuries.  Defendant moved for summary judgment and the court found that defendant had satisfied the threshold burden of establishing that the premises was maintained in a reasonably safe condition and defendant neither had actual nor constructive notice of the defect.  Plaintiff failed to raise a triable issue of fact supporting her claim that defendant had actual and/or constructive notice of the faulty railing.  In opposition to defendant’s motion, plaintiff principally relied upon her claim that Meyers told her that “this was the third time that I fixed this railing and I’m getting sick of it!�  However, since plaintiff failed to produce any evidence as to the speaking authority of Meyers, the statement was properly found to be inadmissible hearsay and the court found that the complaint was properly dismissed.

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