Medical Malpractice & Health Care



  • Illinois Prejudgment Interest – June Update

    Illinois Prejudgment Interest – June Update

    June 7, 2021

    Pursuant to Illinois Public Act 102-0006 ‒ signed into law by Governor J.B. Pritzker on May 28, 2021 ‒ the Illinois judgment interest statute now imposes prejudgment interest in all actions brought to recover damages for personal injury or wrongful death.

  • New York and Florida at Odds on Immunizing Health Care Providers from COVID-19 Claims

    COVID-19 Claims Immunity for Health Care Providers

    April 6, 2021

    If signed into law by New York Governor Andrew Cuomo, a bill recently passed by the New York State Senate would immediately strip nursing homes, hospitals and other providers of protection from civil liability for negligent acts or omissions committed during the COVID-19 crisis. That would mean COVID-19-related claims against health care providers would be litigated as typical malpractice cases.
  • Distance Medicine: Telepsychiatry in the Age of COVID-19

    Journal of Emerging Issues in Litigation

    March 30, 2021

  • Illinois Prejudgment Interest Legislation – UPDATE

    UPDATE on Illinois Prejudgment Interest Legislation

    March 29, 2021

    While Illinois Senate Bill 72 is an improvement over House Bill 3360, vetoed by Governor J.B. Pritzker on March 25, 2021, it is still problematic. If enacted into law, Senate Bill 72 would impose prejudgment interest on noneconomic damage awards for pain and suffering. Non-economic awards can never be anticipated with mathematical precision and often comprise the lion’s share of a personal injury or wrongful death verdict.

  • Connecticut Retracts Immunity for Hospitals and Nursing Homes for COVID-19-Related Claims, Effective March 1, 2021

    CT Ends COVID-19 Immunity for Hospitals & Nursing Homes

    February 24, 2021

    An executive order issued by Connecticut Governor Ned Lamont means that doctors, residents, nurses, physician assistants, aides and other practitioners will be shielded from liability for acts or omissions ordinarily constituting malpractice, whereas hospitals and nursing homes can be liable for those same acts or omissions.

  • U.S. Attorney’s Office for the Middle District of Tennessee and the U.S. Department of Justice File Statement of Interest Addressing the PREP Act’s Complete Federal Preemption of State Law Claims Related to COVID-19 Countermeasures

    U.S. Attorney’s Office for the Middle District of Tennessee and the U.S. Department of Justice File Statement of Interest Addressing the PREP Act’s Complete Federal Preemption of State Law Claims Related to COVID-19 Countermeasures

    January 21, 2021

    The Statement of Interest filed by the U.S. government in a Tennessee nursing home case analyzes federal jurisdiction in arguing immunity under the PREP Act for tort claims arising from the administration of public health countermeasures related to COVID-19. This Statement provides a strong legal foundation for filing removals in existing actions to federal court from state court to determine immunity under the Act.

  • Illinois Legislature Passes Bill Amending Judgment Interest Statute to Impose Prejudgment Interest in Tort Actions

    IL General Assembly Passes H.B. 3360, Imposing Prejudgment Interest in Tort Actions

    January 15, 2021

    If it becomes law, Illinois H.B. 3360 amends section 1303 of the Illinois Compiled Statutes to impose prejudgment interest in tort actions. Prejudgment interest will begin to accrue on the date the defendant has notice of the injury from the incident or from a written notice. In entering judgment for the plaintiff in the action, the court will add prejudgment interest in the amount of 9 percent of the judgment per annum.
  • Mandatory COVID-19 Vaccination Programs

    Mandatory COVID-19 Vaccination Programs

    December 16, 2020

    As the country awaits final FDA approval for emergency use of additional COVID-19 vaccines, employers are rapidly confronting the implications. For long-term care facilities in particular, availability of a COVID-19 vaccination raises urgent questions regarding the treatment of employees and residents.

  • Updated! Medical Malpractice & COVID-19: A Comparative Law Review

    December 15, 2020

    This comparative law review provides a comparison by state, including the District of Columbia, of any regulations enacted to protect health care workers from liability, modify licensing requirements for health care providers and facilities, and/or extend the statute of limitations as states grapple with the social health impact of the COVID-19 pandemic. The information is accurate as of December 7, 2020.
  • HHS Secretary’s Fourth Amendment to PREP Act Declaration Clarifies Its Intent for Federal Jurisdiction and Broad Application to COVID-19-Related Claims

    Fourth Amendment to PREP Act Declaration Issued

    December 4, 2020

    The fourth amendment to HHS Secretary Azar’s PREP Act Declaration assertively addresses current disputes involving federal jurisdiction for courts hearing disputes about the Act’s application to claims for injury, and further suggests an intention for a broad application of the Act.
  • Long-Term Care Newsletter Fall 2020

    The Future of Long-Term Care Regulations, Federal Oversight and Adaptations in Practice Standards

    Fall 2020

    This issue of the Long-Term Care Newsletter offers an analysis of the unprecedented regulatory actions and new guidelines and requirements directed toward ensuring a safe and robust environment for long-term care residents and staff. Key to the efforts is putting patients before paperwork to provide quality care and ensure individualized care plans are followed.
  • Maryland Adopts Daubert Standard for Expert Testimony: Fallout from Jurisprudential Drift

    Maryland Adopts Daubert Standard for Expert Testimony

    September 30, 2020

    In a four-three majority opinion, the Court of Appeals of Maryland adopted the Daubert standard for admitting expert testimony, holding that Maryland will now “implement a single standard by which courts evaluate all expert testimony: Daubert.” In so doing, the court reasoned that Maryland has been drifting toward the Daubert factors and that application of a single, uniform test for the admissibility of expert testimony would provide trial courts with clearer guidance and instruction.

  • Two Democrat Governors Walk Back COVID-19 Liability Protections for Health Care Workers

    COVID-19 Liability Protections for Health Care Workers

    September 8, 2020

    In August 2020, New York’s governor signed legislation that refined immunity for health care workers during the COVID-19 state of emergency. At the same time, Michigan’s governor vetoed a bill that would have revived her Executive Order extending such immunity until January 1, 2021. Health care providers in both New York and Michigan are advised to continue to provide prudent care because they cannot bank on any protection from COVID-19 immunity laws.

  • COVID-19 Liability Claims Playbooks – Now Available for Download!

    August 6, 2020

  • New York Governor Sets Agenda for Safety in New York’s Nursing Homes

    NY Executive Order Mandates Protection of Nursing Home Patients

    May 18, 2020

    New York’s Executive Order No. 202.30 provides that any Article 28 general hospital shall not discharge a patient to a nursing home, unless the nursing home operator or administrator has first certified that it is able to properly care for such patient. It further provides that any Article 28 general hospital shall not discharge a patient to a nursing home without first performing a diagnostic test for COVID-19 and obtaining a negative result.

  • COVID-19 and Its Impact on Medical Professional Liability: First Impressions

    PLUS Journal

    Second Quarter 2020

  • Executive Order No. 202.10: What does it say, to whom does it apply, and what does it mean?

    New York’s Executive Order 202.10: What Does It Mean?

    March 31, 2020

    In an effort to stem the transmission of COVID-19, ensure that the New York’s general hospitals and trauma centers have sufficient bed capacity, and eliminate obstacles to obtaining medical supplies and providing treatment to all who need it, Governor Cuomo issued an executive order that will remain in effect through April 22, 2020. However, as the crisis further expands, the Order could be periodically extended for the duration of the COVID-19 crisis.

  • The Efficacy and Expansion of Telemedicine to Meet the Growing COVID-19 Pandemic

    Efficacy & Expansion of Telemedicine: COVID-19 UPDATE

    March 24, 2020

    Telemedicine pre-COVID-19 was largely for the convenience of the patient/clinician or to provide inexpensive care. Today it has moved into the realm of protective medicine that can help avoid the spread of the virus to other patients and health care providers.

  • FDA’s Role in Battling the COVID-19 Pandemic: Part I What Manufacturers, Diagnostic Laboratories and Their Insurers Need to Know

    FDA’s Role in Battling COVID-19 Pandemic: Part I

    March 23, 2020

    Manufacturers and diagnostic laboratories need to remain aware of decisions and actions taken by the FDA and take corresponding measures to comply. Insurance carriers also should be alert to impacts on the manufacture and shipment of their covered products as well as the FDA’s reaction to these impacts, as both could precipitate the need for changes in their policies.

  • Employing Crisis Standards of Care in Response to the COVID-19 Pandemic

    Crisis Standards of Care in Response to COVID-19 Pandemic

    March 20, 2020

    When confronted with crisis conditions and medical equipment shortages, medical professionals should be allowed flexibility to provide real-time solutions to complicated medical decision-making – within a crisis standards of care framework that incorporates elements of fairness, transparency, consistency, proportionality and accountability, consistent with AMA and state guidelines.
  • Navigating COVID-19 in Long-Term Care Facilities

    COVID-19 and Long-Term Care Facilities

    March 19, 2020

    To protect patients and staff at long-term care facilities, and to avoid missteps, it is essential that such facilities immediately enact a written protocol to be disseminated to staff, residents and their families, and visitors.
  • Risks of Dusting Off the Scrubs

    Former Health Care Workers on Call During Pandemic?

    March 18, 2020

    Should doctors and nurses who currently work in another field or are retired with an active medical license be encouraged to “dust off their scrubs”? Many health care providers treating patients with the coronavirus have been forced to self-quarantine for at least two weeks after coming in contact with a confirmed case, thus creating a shortage of doctors and nurses available to treat patients for any medical need.

  • FDA Report Brings Hope for CBD Dietary Supplements

    FDA Report Brings Hope for CBD Dietary Supplements

    March 17, 2020

    The U.S. Food and Drug Administration recently released a report that outlines a variety of actions taken or being considered by the FDA to advance the potential regulatory pathways for CBD, including “the agency's progress toward obtaining and analyzing data to help determine a policy of enforcement discretion and the process in which CBD meeting the definition of hemp will be evaluated for use in products.”
  • Uncertainty Surrounds Legality of Different CBD Forms

    Uncertainty Surrounds Legality of Different CBD Forms

    March 3, 2020

    The Food and Drug Administration has not attempted to make any distinction between highly concentrated CBD isolate versus “full-spectrum” hemp extracts that contain numerous cannabinoids, including CDB, at lower concentrations. The form of CBD nevertheless should be an important consideration when evaluating a product’s legality as a food additive or dietary supplement under the Food, Drug and Cosmetic Act.

  • D.C. Court of Appeals Rules No Reason to Distinguish Consumer Protection Claims against Health Care Providers from Other Consumer Protection Claims

    Widespread Ramifications for Medical Malpractice Litigation in D.C.

    March 2, 2020

    The D.C. Court of Appeals recently ruled that the burden of proof for consumer protection claims against health care providers is the same as for general consumer protection claims. This increases medical defendants’ potential exposure because under the D.C. Consumer Protection Procedures Act, plaintiffs may recover treble damages and attorney’s fees.
  • Newly Discovered Form of THC Could Help Explain Potency Variations in Cannabis Strains and May Lead to New Product Label Requirements

    Newly Discovered Form of THC

    January 27, 2020

    Labels on most cannabis products focus on THC and CBD concentration to the exclusion of other potentially potent cannabinoids. The newest identified cannabinoid, THCP (tetrahydrocannabiphorol), is many times more potent than THC.

  • Second Time’s a Charm? Governor Cuomo Introduces New Legislation to Regulate Adult-Use Cannabis in New York State

    NY Moves toward Legalizing Adult-Use Cannabis

    January 24, 2020

    New York’s proposed budget contains legislation to legalize adult-use cannabis within the state, and since the budget must be approved by April, New York could see adult-use cannabis become a reality within the next few months.

  • The Evolving Legality of Lesser-Known Cannabis Compounds

    Evolving Legality of Lesser-Known Cannabis Compounds

    January 14, 2020

    With more than 120 identified cannabinoid compounds found in the plant genus Cannabis, it’s all but certain that products based on cannabinoids other than THC and CBD will become better known. The two most likely contenders are cannabigerol, or CBG, and cannabinol, or CBN.

  • District Court Grants Summary Judgment in Youth Football CTE Case

    District Court Grants Summary Judgment in Youth Football CTE Case

    January 2, 2020

    The mothers of two former youth football players, each of whom died in their mid-twenties a decade after they last played youth football, sued for money damages and to enjoin advertising that “youth tackle football is safe for minor children.” In a decision of first impression, the U.S. District Court for the Central District of California granted Pop Warner Football’s motion for summary judgment against negligence and wrongful death claims.
  • USDA's Hemp Regulations Create Challenges for Hemp and CBD Producers

    USDA Interim Final Rule for U.S. Hemp Production Program

    December 19, 2019

    The U.S. Department of Agriculture’s interim final rule for its Domestic Hemp Production Program, which was unveiled on October 31, 2019, has caused concern with several issues critical to the hemp and CBD industries, including what constitutes acceptable testing and sampling procedures. The interim rule states that all testing shall be performed by DEA-certified labs and that a failed test from a distinct lot may invalidate the entire harvest, which would cause major income losses for producers.

  • Check the boxes to help ensure compliance with HIPAA security and privacy rules!

    December 16, 2019

    As the year draws to a close, it’s an especially good time to review your businesses’ cybersecurity policies and procedures as they relate to electronic protected health information under HIPAA regulations.
  • The Double-Edged Sword of Medical Professionals’ Apologies

    Inside Medical Liability

    Third Quarter 2019

  • Defense of Claims against Ambulatory Surgical Centers

    Inside Medical Liability

    August 28, 2019

  • The Empire State of Cannabis

    Two Bills and a Ban Shake Up the State of Cannabis in NY

    July 9, 2019

    Effective July 1, 2019, the NYC  Department of Health and Mental Hygiene began enforcing a ban on CBD in foods and drinks; starting October 1, 2019, violations will be issued. Hot on the heels of the new regulation will be the disposition of S 6579A – New York’s Marijuana Decriminalization Legislation – and S 6184A – Industrial Hemp and Hemp Extracts Regulations.

  • 2019 Medical Provider Expressions of Sympathy Comparative Law Review

    July 2019

    An invaluable resource regarding so-called “apology laws,” the 2019 Medical Provider Expressions of Sympathy Comparative Law Review presents an overview of statutes addressing the admissibility of medical providers’ statements or expressions of sympathy, as well as supplemental information for consideration in states and territories without laws or statutes regarding such expressions.
  • New Jersey’s Department of Health Announces Plan to Expand Its Medicinal Marijuana Program

    NJ DOH Plans to Expand Medicinal Marijuana Program

    June 10, 2019

    Last month, the NJ Department of Health announced it had revised the state’s medicinal marijuana program to expand its availability to more patients and extend its reach by reducing patient costs and adding more than two dozen diseases and symptoms as qualifying conditions for treatment.

  • USDA Issues Legal Opinion Supporting Current Legality of Hemp in Interstate Commerce

    Legality of Hemp in Interstate Commerce

    June 3, 2019

    The USDA’s recent opinion is an important development that should go a long way toward resolving any lingering doubt that 2014 Farm Bill−compliant hemp and hemp-derived products are legal in interstate commerce, and may be persuasive to the Ninth Circuit Court of Appeals as it considers the release of a seized shipment of hemp confiscated in January.
  • California Poised to Remove Prohibition on Hemp-Derived CBD in Foods and Supplements

    California: Hemp-Derived CBD in Foods/Supplements

    May 20, 2019

    While manufacturing and retail sales of marijuana-derived CBD products are permitted in accordance with California’s cannabis regulations, hemp-derived CBD remains unapproved for use as a food ingredient, food additive or dietary supplement. Assembly Bill 228 is about to change that.

  • CBD Risk Management

    Cannabis Law: CBD Risk Management

    May 8, 2019

    No matter how a company chooses to participate in the CBD industry, it must be counseled on FDA regulatory risk based on the product type in addition to the risks of marketing and selling CBD products on a state-by-state basis. Because the legality of CBD products varies widely by state and is changing so rapidly, providing a concise analysis of critical CBD legal and risk management issues can be a challenge.

  • Navigating CBD Risks When Legal Pathway to Marketing Is Anything But Clear

    FDA Considers Easing of Restrictions on CBD

    April 25, 2019

    Advising companies on CBD risk management is challenging due to the rapid pace of developments and frequent confusion caused by often false or misleading online information. In this article, Ian Stewart outlines the critical CBD legal and risk management issues to watch.

  • Learned Intermediary Doctrine Protects Pharmacy from Liability for Failure to Warn of Prescription Drug Side Effects

    Pharmacy Failure to Warn of Prescription Drug Side Effects

    March 28, 2019

    The Illinois First District Appellate Court recently held that pursuant to the learned intermediary doctrine a pharmacy has no duty to warn customers of prescription drug side effects that may occur in “anyone” who takes the drug.

  • Cuomo Introduces Adult-Use Cannabis Legislation in New York

    Cuomo Introduces Adult-Use Cannabis Legislation in New York

    January 18, 2019

    Governor Andrew Cuomo has signaled his intent to legalize recreational marijuana within the coming months. Since the New York Legislature must approve the budget by April, New York could see adult-use cannabis much sooner than expected.

  • FDA Updates Its Position on CBD upon Signing of Farm Bill

    FDA Makes New Announcement on CBD in Response to Enactment of Farm Bill

    December 21, 2018

  • New York Tightens Its Grip on CBD Even as the Feds Ease Industrial Hemp Restrictions

    New York Updates Position on CBD

    December 17, 2018

    Taken together, New York’s newly issued FAQ and CBD processing agreement forecast the state’s intent to strictly regulate CBD products intended for human consumption. Industry members already processing and selling hemp-derived CBD products as well as those looking to enter the market should seek guidance on the quickly evolving regulatory environment.

  • New York’s Medical Marijuana Program Sees Huge Two-Year Gains

    Recent NY Legislation Makes Medical Cannabis More Accessible

    December 7, 2018

    With the increase in certified patients enrolled in New York’s medical marijuana program, medical malpractice carriers must understand the risks behind new legislation and educate their doctors about best practices for recommending medical marijuana.

  • The Paradox of Prematurity: Why have improvements in the care of preterm infants led to more malpractice claims?

    The Risk Management Quarterly

    Volume I 2018

  • Will Hemp-Derived CBD Be Fully Legal with Passage of the 2018 Farm Bill? Not Quite…

    Will Hemp-Derived CBD Be Fully Legal with Passage of the 2018 Farm Bill? Not Quite…

    December 3, 2018

    Ultimately, the new federal protections contained in the 2018 Farm Bill will move the CBD-based food and supplement industry closer to unrestricted national and international distribution of hemp-derived CBD products. Until approved by the FDA, however, CBD as an ingredient in foods and supplements will continue to be risky.

  • The Feds and New York Allow Further Access to CBD and Medical Cannabis

    Feds & NY Advance Use of CBD and Medical Marijuana

    October 24, 2018

    Cannabidiol, or CBD, is a naturally occurring cannabinoid constituent of cannabis. It was discovered in 1940 and initially thought not to be pharmaceutically active. CBD is now known to have significant medical benefits, as is medical-use marijuana.

  • “The Struggle for Sanity and Sobriety in the Legal Profession”

    Clark County, Nevada, Communiqué

    September 1, 2018

  • IME "Watchdog" Companies: Challenging the Scope of Their Services and Ability to Testify at Trial

    Observer’s Role in Independent Medical Examinations

    August 28, 2018

    The Appellate Division has found that the essential function of a watchdog is to observe the examination and take notes, and be available to testify about the observation at trial. In contrast, if a plaintiff’s attorney would not be able to offer similar testimony without the risk of becoming a fact witness, such attorney is disqualified from representation.

  • Hemp-Derived CBD in Food Products – a Legal Rabbit Hole

    CBD in Food & Supplements: The Fragmented Law

    August 16, 2018

    Cannabidiol (CBD) now may be legally distributed, sold, imported or exported without restriction so long as it is from properly sourced industrial hemp, but CBD may be added to food products only if it is derived from marijuana. It is difficult to logically reconcile this “schizophrenic” state of the law.

  • NYS DFS Guidance to Financial Institutions Servicing the Medical Marijuana Industry

    NYS DFS Guidance on Medical Marijuana Industry

    July 25, 2018

    Financial institutions should not underestimate the rigorous due diligence processes it must undertake to work with marijuana-related businesses. Although a recent New York State Department of Financial Services memo is a step in the right direction, financial institutions must fully understand the federal regulatory landscape and New York’s medical marijuana and industrial hemp laws.

  • Massachusetts Finds Pharmacists Have a Legal Duty to Notify Prescribing Physicians of Need for Prior Authorization Forms

    Pharmacists to Notify Physicians of Need for Prior Authorization in MA

    June 8, 2018

    The Massachusetts Supreme Judicial Court imposed a duty on pharmacists to notify the patient and the prescribing physician when a health insurer informs the pharmacy that a “prior authorization” form is required to be filled out by the physician before the medication can be dispensed to the patient.

  • Moving Toward a Standard of Care for Medical Marijuana

    Guidelines for Physicians Recommending Cannabis

    June 8, 2018

    The guidelines California and other states have issued regarding the recommending of cannabis for medical conditions serve as a starting point for the discussion surrounding the standard of care by creating baselines and establishing routine practices by which physicians can familiarize themselves with the requirements of the changing world of medicine and incorporation of cannabis as a modern treatment for their patients’ conditions.

  • New York’s Appellate Division Rules on Confidentiality of Organ Procurement Organization Records

    Confidentiality Protections for Records of Organ Procurement Organizations

    June 6, 2018

    New York’s Appellate Division, First Department held that donor records in an Organ Procurement Organization’s (OPO’s) possession are entitled to the same confidentiality as the records of hospital patients. This marks a major step forward in clarifying the state of the law as it relates to OPOs and is a key tool in empowering OPOs to defend against unauthorized disclosure of donor information.

  • Blockchain Is Poised to Disrupt Health Care

    Florida MD | Healthcare Law

    September/October 2017

  • Florida MD Article by Baker Explores Cyber Risk in the Health Care Industry

    October 25, 2017

  • Criminal Conduct in Hospitals: Is the Hospital Liable?

    The Risk Management Quarterly

    Volume II 2017

    Sean Maraynes (Associate-White Plains) has published “Criminal Conduct in Hospitals: Is the Hospital Liable?” in The Risk Management Quarterly, Volume II 2017, published by The Association for Healthcare Risk Management of New York, Inc. Sean posits that although plaintiffs’ attorneys face an uphill battle when asserting claims against hospitals arising from sexual or physical assaults, “a hospital may leave itself open to a high-exposure claim unless it can demonstrate well-documented background checks, well-documented periodic evaluations, thoughtful chaperone policies and a well-trained security department.”

  • Defending a "Never Event"

    Journal of Healthcare Risk Management

    Volume 37, Number 1, 2017

  • All Management Service Organizations Are Not Created Equal

    Dallas Medical Journal

    May 2017

  • Not All Management Service Organizations Are Created Equal

    Compliance Today: Publication of the Health Care Compliance Association

    September, 2016

  • Emergency Room Liability: Raising the Hurdle of Requisite Proof While Lowering the Damage Caps

    DRI: For the Defense

    August 2016

  • Arbitration of Malpractice and Wrongful Death Claims Against Nursing Homes”

    Westchester Country Business Journal (Westfair Communications

    March 24, 2016

  • Nurse Practitioners in the World of Pain Management: A Cautionary Tale

    The Journal for Nurse Practitioners

    Volume 12, Issue 2, February 2016

  • Florida Constitutional Provision Mandating Disclosure of Adverse Medical Incidents Preempted by Federal Patient Safety and Quality Improvement Act

    Information Pertaining to Adverse Medical Incidents

    October 30, 2015

    Although Florida’s “Amendment 7” was intended to bring transparency to the world of medical errors, it has often been used by medical negligence litigants to obtain discovery beyond the specific situation at issue in a given lawsuit. In a recent opinion, the First District Court of Appeal gave a victory to health care providers in Florida, who have faced repercussions in litigation as a result of Amendment 7 disclosures and who have spent significant time and money complying with Amendment 7 document requests in medical negligence actions.

  • Can the ACA Help to Reduce Jury Awards?

    Westchester County Business Journal

    October 30, 2015

  • Connecticut Expands Loss of Consortium Claims to Minor Child

    Connecticut Expands Loss of Consortium Claims

    October 5, 2015

    The Connecticut Supreme Court has joined the majority of jurisdictions that recognize the right of minor children to bring parental consortium claims, which are likely to become commonplace under the decision to be officially released on October 6, 2015. However, the Court placed certain restrictions on the ability to bring suit and right of recovery.

  • Massachusetts Supreme Judicial Court Reinforces the Standard for Detailed and Complete Expert Disclosures and Clarifies the “Learned Treatise” Exception to the Hearsay Rule

    MA Supreme Judicial Court on Expert Disclosures

    September 23, 2015

    The Massachusetts Supreme Judicial Court recently ruled on two issues of particular relevance to the trial of medical malpractice cases. First, whether the plaintiff, through her counsel, complied with obligations to disclose the substance of and grounds for the opinions of an expert witness, and, second, whether certain materials obtained from the Internet qualify within the meaning of the "learned treatise" exception to the hearsay rule.

  • Illinois Passes Authorized Electronic Monitoring in Long-Term Care Facilities Act

    Electronic Monitoring in Long-Term Care Facilities

    September 1, 2015

    The Authorized Electronic Monitoring in Long-Term Care Facilities Act has become law in the state of Illinois. Effective January 1, 2016, residents of nursing homes, or family members, will be able to place recording devices in their rooms. It remains to be seen how the rules surrounding the new law will affect long-term care facilities.

  • Mental Health ‘Patient Dumping’ in the Twenty-First Century

    TYL: Quarterly, ABA Young Lawyers Division

    August 11, 2015

  • Closing a Practice

    How to Prepare for Death, Disability and Retirement

    July 2015

  • A Life or Death Decision

    Healthcare Risk Management Review

    September 9, 2014

  • Maryland Court of Appeals Upholds the Frye-Reed “General Acceptance” Test for Admissibility of Expert Testimony

    MD Court Upholds Frye-Reed Test for Admissibility

    October 23, 2013

    Maryland Court of Appeals Upholds the Frye-Reed “General Acceptance” Test for Admissibility of Expert Testimony

    Trial courts could view the recent decision by the Maryland Court of Appeals as a convincing directive to deny admission of an expert’s testimony based on the mere existence of scientific or medical literature stating an opposing proposition, especially when the expert is the author of that literature. This finding will be particularly relevant in cases where parties seek to introduce expert opinions regarding novel or experimental procedures and techniques.

  • Fault Allocation in Maryland Remains Undisturbed

    The Defense Line: A Publication from the Maryland Defense Counsel, Inc.

    Fall 2013

  • Expert Testimony in Maryland—Maintaining the Frye-Reed Standard: Unanimity Not Required for Exclusion, as the Existence of a Genuine Controversy is Enough

    The Defense Line: A Publication from the Maryland Defense Counsel, Inc.

    Fall 2013

  • U.S. Department of Health and Human Services Imposes $1.2 Million Penalty For Protected Health Information Breach Involving Leased Copiers

    HIPAA Breach Involving Leased Copiers leads to Fines for NYC Health Plan

    August 22, 2013

    Under a settlement with the U.S. Department of Health and Human Services (“HHS”), Affinity Health Plan, Inc. (“Affinity”), a not-for profit managed care plan serving the greater New York City area, will pay more than $1.2 million in penalties for its violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy and Security Rules relating to its failure to properly safeguard PHI stored on its photocopier hard drives.

  • Maryland’s Highest Court Rules It Would Be Contrary to Legislative Mandates for the Maryland Judiciary to Abrogate the Contributory Negligence Doctrine

    Fault Allocation in Maryland Remains Undisturbed

    July 31, 2013

    On July 9, 2013, the Court of Appeals of Maryland upheld the long-standing contributory negligence doctrine. If Maryland were to transition to a comparative fault system, several statutory provisions would need to be changed, along with many statutes that refer to or hinge on contributory negligence. The judiciary cannot repeal or amend these statutes; hence, the court has agreed that the task is best left to the legislature.

  • New York’s Highest Court Finds ER Physician and Hospital Have No Duty to Prevent Intoxicated Patient from Leaving Hospital

    July 9, 2013

  • California Legislature Limits Depositions in Civil Cases to Seven Hours

    Depositions in Civil Cases

    September 20, 2012

    California’s governor has signed Assembly Bill 1875, which limits the length of depositions in civil cases. The new law will go into effect on January 1, 2013.

  • New Pennsylvania Law Dramatically Alters Joint and Several Liability

    June 2011

    On June 28, 2011, Pennsylvania governor Tom Corbett signed into law a bill known as the "Fair Share Act" (Senate Bill 1131). This legislation, which is effective immediately but does not apply retroactively to pending actions, effects a major revision to the doctrine of joint and several liability.
  • Should You Respond to that SUBPOENA?

    The Mental Health Risk Management Newsletter

    November 2010

    No matter the type of clinical practice a mental health care professional enjoys, the odds are almost certain that a patient will be involved in litigation. Frequently, during the course of discovery in a legal proceeding, a patient’s mental health becomes an issue. Most often the attorneys involved in that case will serve a subpoena on a psychiatrist to produce his records, give a deposition, or come to trial and testify. Should you respond to that subpoena and turn over your records or give a deposition? In Illinois, the answer is usually no.

  • Illinois strikes down verdict caps

    February 2010

    On February 4, 2010, the Illinois Supreme Court, by a 4-2 ruling, invalidated an Illinois statute which established caps on the amount of non-economic damages such as; pain, disfigurement and loss of consortium, that can be recovered in medical malpractice actions.  In reaching its determination in Lebron v. Gottlieb Memorial Hospital (Ill. Supreme Court Docket Nos. 105741, 105745), the court determined that the statute violated the separation of power provisions stated in the Illinois Constitution by nullifying the court's inherent power to correct excessive jury awards.

  • The Duty to Warn in Illinois

    The Mental Health Risk Management Newsletter

    October 2009

    Most mental health professionals are aware of Tarasoff v. Regents of University of California, 17 Cal.3d.425 (Cal. 1976). The 1976 California case held that when a therapist determines that a patient presents a serious danger of violence to another, the therapist has the duty to contact the intended victim, notify the police or take other steps reasonably necessary under the circumstances. Tarasoff set the exception to the general rule that one owes no duty to control the conduct of another. The court in Tarasoff emphasized that therapists have no general duty to warn of each threat, but have a duty to act only where the therapist should have determined that a patient poses a serious danger of violence to a foreseeable victim.

  • Proper Note-taking and Charting

    The Mental Health Risk Management Newsletter

    October 2005

    Over the years, we have seen many therapists lose cases
    due to inaccurate or incomplete charting. Sometimes an entire lawsuit can hinge on the notes or lack of notes contained in a patient’s chart. Every 10 years or so, the theory of notes and charting will change. At one time, therapists preferred not to chart too much and believed “less was better.” Then, attitudes changed and mental health professionals began to chart everything under the sun and would write novellas for every appointment with a patient.

  • Therapy Over the Internet

    The Mental Health Risk Management Newsletter

    November 2002

    Online therapy or “cyber therapy,” defined as the provision of mental health services over the Internet, is a growing field that has created equal amounts of interest and controversy. Prior to engaging in cyber therapy, clinicians should be aware that there are many risk management issues involved in the practice.