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August 2015 Archives

Physician Professional Misconduct

 The practice of medicine is perhaps one of the most mentally, as well as physically demanding and challenging of professional endeavors.  Patients are today more sophisticated and knowledgeable about their own bodies and medical conditions, and thus present more burdensome demands on a doctor’s time.  Government regulations on everything from fees, record keeping, as well as licensure, and the ultimate watch-dog, the tort system, dilute the satisfaction and fulfillment that should come from patient care.  If you are a doctor, keeping up with changing medical care standards and good intentions may not be enough to satisfy acceptable standards of professional conduct.  It behooves the doctor to be aware of the fact that under New York law (Education Law §6530), there are 48 “Definitions of professional misconduct.”  Section 6531 has an “additional definition” dealing with fee splitting making in all 48.

Discovery Order Non-Compliance: A Recipe for Sanctions & Relief Being Granted Per CPLR § 3126 and CPLR § 3124

Non-compliance with Discovery Orders is dangerous as it can ultimately lead to penalties and sanctions against non-compliant litigants and their attorneys. In practice, attorneys often intentionally disregard discovery demands served upon them despite the deadlines for responses required by the New York State Civil Practice Law and Rules (“CPLR”). Pursuant to CPLR § 3126 and CPLR § 3124, however, the Courts have discretion to severely penalize counsel representing parties who are not in compliance. As noted herein, such discovery defaults are professionally irresponsible, posing a threat to both the attorney and the client. When a party fails to comply with a Discovery Demand or Discovery Order, the opposing party may file a Motion to compel the production of outstanding responses pursuant to CPLR § 3124 or a Motion seeking preclusive relief pursuant to CPLR § 3126.

When Drafting a Power of Attorney, Use Caution if Appointing a Monitor

When discussing the possible use of a power of attorney within New York State with a client, attorneys should take care in regard to the potential appointment of a monitor. Though the appointment of a monitor may appear to provide the principal additional protections against misconduct by an agent, the appointment of a monitor may only result in unrealistic expectations and a false sense of security if additional language is not added to modify that power of attorney.In its 2006 decision for In Re Ferrara, the Court of Appeals stressed the need for agents appointed within a power of attorney to act consistent with the best interests of the principal.[i] The GOL was thereafter modified to provide individuals with more protections when creating a power of attorney.[ii]

Protecting Confidential HIV Related Medical Records in the Discovery Process

The United States Center for Disease Control estimates that over 1.2 million people in the United States are living with HIV infection and HIV/AIDS has resulted in the death of approximately 658,507 Americans.[i] As counsel to those who are infected or affected by HIV/AIDS, attorneys must protect the confidentiality of HIV-related medical records in litigation where disclosure is sought.A wide scope of discovery is permitted under CPLR § 3101 which instructs that, “There shall be full disclosure of all matters material and necessary in the prosecution of defense of an action, regardless of the burden of proof.”

Post Appeal Motion to Renew in the Supreme Court

By: Gary E. Bashian, Esq.* It ain’t over till it’s over-Yogi Berra Consider the following scenario:
  1. A Defendant’s Pre-Answer Motion to Dismiss is partially granted by a Court of original Jurisdiction, striking several of Plaintiff’s Causes of Action as pled;
  2. Both parties appeal to the Appellate Division, where the Lower Court’s Order is affirmed in its entirety;
  3. During the Discovery process, months, or maybe even years subsequent to the Order striking Plaintiff’s originally pled Causes of Action, new facts and evidence come to light during the Discovery process which clearly establish that Dismissal of one or more of Plaintiff’s originally pled Causes of Action was in error.
Question: What do you do?

Technical Corrections to the New Statutory Power of Attorney and Statutory Major Gifts Rider

By: Gary E. Bashian, Esq. On September 12, 2010, the Technical Corrections Act, signed by Governor Patterson August 15, 2010, will take effect, modifying the recently changed Statutory Short Form Durable Power of Attorney and General Obligations Law in a number of important ways. All references to the statute herein are to the General Obligations LawThese changes affect several areas, including: (1) allowable agents under the statutory Power of Attorney, (2) terms of revocation, (3) changes to the Statutory Major Gifts Rider, 94) an agent’s powers regarding Trusts and to engage in alternative dispute resolution, (5) requirements for third parties to accept an agent’s power under the form, and (6) effective Powers of Attorney created in other states or jurisdictions.Some of these changes are broad ad uniform; others are more specific and directed.
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