Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘NYC’

High cost of health privacy laws, cont’d

More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday, sources said.” (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.

More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.

Friday morning sequel: This morning’s New York Post sticks with the original story and fleshes out the HIPAA role somewhat:

The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock – because detectives can’t access her patients’ medical records under federal privacy laws, The Post has learned.

Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor’s patient – and need access to her records to identify him.

But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.

“A case like this gets complicated because of medical privacy protections,” a source close to the investigation told The Post yesterday.

The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients – even in a murder investigation – and that only through the use of subpoenas can authorities hope to obtain such information.

Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. …

[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building’s front desk and through surveillance cameras in the lobby, sources said.

(Murray Weiss, Jamie Schram and Clemente Lisi, “Vexed by ‘Slay File’ Madness”, New York Post, Feb. 15). My Times (U.K.) article on the problems posed by health privacy laws is here.

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Problem teachers dig in; NYC lawyers up

How many lawyers does it take to eject an underperforming teacher from a Gotham classroom? Apparently quite a few:

The Bloomberg administration is beginning a drive to remove unsatisfactory teachers, hiring new teams of lawyers and consultants who will help principals build cases against tenured teachers who they believe are not up to the job. …

At the center of the effort is a new Teacher Performance Unit of five lawyers, headed by a former prosecutor fresh from convicting a former private school principal who had a sexual relationship with a student….

The plans, at a cost of $1 million a year [including five additional consultants whose job includes documenting underperformance], are described in a memo and an accompanying letter to principals from Schools Chancellor Joel I. Klein. In the letter, he urged principals to help teachers improve but added, “When action must be taken, the disciplinary system for tenured teachers is so time-consuming and burdensome that what is already a stressful task becomes so onerous that relatively few principals are willing to tackle it. As a result, in a typical year only about one-hundredth of 1 percent of tenured teachers are removed for ineffective performance.

“This issue simply must be tackled,” he wrote. …

Randi Weingarten, the president of the city’s teachers union, the United Federation of Teachers, called the lawyers a “teacher gotcha unit” and said she found it “disgusting” that the Education Department would issue such a memo after the release of new school report cards that bluntly grade schools A through F.

(cross-posted from Point of Law). More: Jane Genova isn’t a fan of the initiative (Nov. 27).

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NYC council: poor tenants should have eviction lawyers

Note that the proposal here is not to provide free lawyers in cases where careful case-screening establishes a fair argument that the eviction is in some way legally wrongful or unjustified. It’s to use taxpayer money to make sure that tenants who’ve trashed the apartment or stiffed the landlord on months of rent are also assigned a lawyer who will predictably use all the procedural leverage available to stall things out further, extract a payment as a condition for the tenant’s leaving, and so forth. NYU’s Brennan Center is pushing the scheme, which has 22 sponsors on the New York City council. (Manny Fernandez, “Free Legal Aid Sought for Elderly Tenants”, New York Times, Nov. 16). For more about “Civil Gideon” schemes, see this post (scroll) and this one (David Giacalone: “Attorney Employment Assurance Plan”).

P.S.: To clarify matters: for now, the program would apply to elderly tenants (which doesn’t mean all the occupants of the apartment will necessarily be elderly).

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But still no rat disclosure requirements?

Not to pile on, but Walter’s post yesterday about the follies of NYC Health Commissioner Thomas Frieden omitted a lesser-known regulatory change enacted by the Board of Health at the same time as the trans-fat rule: a rule requiring chain and fast food restaurants to put calorie counts on their menus or menu boards. (Because many people who buy Big Macs are counting calories.) A rule which managed to annoy the regulation-friendly New York City Council because Frieden did it without bothering to ask the city or state legislature first. A rule which had the added virtue of being completely counterproductive.

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“Back to basics, Dr. Frieden”

While the NYC Health Commissioner was squandering the city’s credibility on trans fats (“totally replaceable“, you betcha) and hatching Big Brother schemes for diabetic-watching, the traditional and basic functions of his office, like keeping rats out of restaurants, were going untended, notes an editorial in the Post. “The Taco Bell in question had received a, you should pardon the expression, clean bill of health from one of Frieden’s restaurant inspectors 24 hours before the rats were taped doing their “Happy Feet” impressions last Thursday morning. …Of course, if the Taco Bell rats had been smoking, Frieden would have been there to nail the door shut himself.” Andrew Stuttaford at NRO thinks it’s long past time for Frieden to go. (cross-posted from Point of Law).

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February 20 roundup

  • Trucker-friendly Arizona legislature declines to ban naked lady mudflaps [NBC4.com; Houstonist]
  • Crumb of approbation dept.: I’m “[not] as unreasonable as most of the tort-reform crowd” [Petit]
  • Sponsors of large banquets in D.C. must pay to have a paramedic on hand even when the banquet crowd consists of doctors [ShopFloor]
  • Homeowner’s insurance doesn’t cover homewrecking: umbrella policy doesn’t create duty to defend lawsuit claiming the insured broke up someone’s marriage (Pins v. State Farm (PDF), S. Dak., Mayerson via Elefant)
  • New York mag on RFK Jr.: Is there some law saying all press profiles of America’s Most Irresponsible Public Figure® must be weirdly softball in nature and glide over his embarrassing book and rants, his Osama-pig farm lunacy, his anti-vaccine humbug, his trial-lawyer entanglements and even the wind farm flap?
  • Australia court rules Muslim prison inmate suffered discrimination and deserves money for being served canned halal meat rather than fresh [The Australian]
  • High medical costs and their causes: am I listening? [Coyote]
  • Economists may puzzle their heads over the ultimate incidence of business taxes, but in Wisconsin it’s whatever Gov. Jim Doyle says it is [Krumm via Taranto]
  • Feds may punish Red Sox pitcher Matsuzaka for doing a beer ad in Japan, where it’s perfectly legal for athletes to appear in such [To The People]
  • Guns in company parking lots: still one of the rare issues where the ABA manages to be righter than the NRA [AP/CBSNews.com; see Apr. 6, 2006]
  • Thanks, NYC taxpayers: Brooklyn jury awards $16 million against city in case where drugged-up motorist jumped sidewalk and ran over pedestrians, later blaming the accident on a city sanitation truck [seven years ago on Overlawyered]

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Appearances: NPR, ABC “World News Tonight”

I was a guest this afternoon on Michelle Martin’s live National Public Radio talk show, “Talk of the Nation“, discussing New York City’s proposed ban on most uses of trans fats in restaurants. ABC News “World News Tonight” also had me comment for a news segment on the issue planned for tonight’s broadcast.

On NPR, NYC Health Commissioner Thomas Frieden claimed that it is always possible to duplicate the taste and other gustatory qualities of a trans fat recipe using other fats. For an example of a business that stumbled by buying into this particular premise, see Jun. 30 (West Virginia potato chip maker Mister Bee).

P.S. On the NPR audio clip, check out the section just before I come on where host Martin, interviewing Frieden, does a blind taste testing of two wafer cookies, one made with trans fats and one without. And here’s a mention by Bonnie Erbe at USNews.com (Sept. 27)(attributing to me “typical eloquently opinionated New York style”).

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NYC plans to ban trans fats

Few Gotham restaurants paid much heed when city health commissioner Thomas Frieden announced supposedly voluntary curbs on the use of partially hydrogenated fats, so now the city is planning on making the restrictions mandatory. Among many, many foods that will apparently need to be either reformulated or bootlegged: Krispy Kreme “Hot Original Glaze” doughnuts. In the New York Sun, reporter Russell Berman quotes my reaction: “When is Nurse Bloomberg planning to let us fill up our own plates?”. (“City Wants to Ban Some Fatty Foods in Restaurants”, Sept. 27; “Freedom Fries” (editorial), Sept. 27).

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$2 million 9/11 fee under fire

“Laura Balemian, whose husband Edward J. Mardovich died in the World Trade Center, received one of the largest awards paid out by the September 11th Victim Compensation Fund: $6.7 million. But she in turn paid out what is almost certainly the highest legal fee. While the vast majority of victims were represented before the fund pro bono or for a nominal fee, Balemian paid her lawyer, Thomas J. Troiano, a one-third contingent fee, or over $2 million.” In an affidavit, 9/11 fund special master Kenneth Feinberg calls Troiano’s fee “shocking and unconscionable”, and says that fund guidelines recommend that attorney fees be kept under 5 percent of family recoveries; Troiano, however, says Mrs. Balemian knew what she was getting into and that his efforts produced outstanding results. (Anthony Lin, “Attorney’s $2 Million 9/11 Fee Called ‘Shocking, Unconscionable'”, New York Law Journal, Aug. 29; Alfonso A. Castillo, “9/11 widow battles over attorney’s fee”, Newsday, Sept. 1; MyShingle, Aug. 28).

Update: Story also covered in this American Justice Partnership publication (PDF).

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