Month: October 2013

The Current State of e-discovery and Social Media Websites

In September 2012, Twitter gave a sealed document to a New York criminal court containing three months worth of tweets and data from an Occupy Wall Street protester’s Twitter account. Both the defendant, charged with disorderly conduct, and Twitter filed motions to stop the subpoena but were denied by the judge.

The case has led Twitter to seek a finding in higher court to deny responsibility for users’ posts and avoid future subpoenas – and has led to much discussion among court and government officials regarding discovery of litigation evidence on social media websites. Discovery is the process by which each party in a lawsuit can learn what evidence the opposing side has relevant to the dispute in preparation for trial. In 2006, the Federal Rules of Civil procedure recognized “electronic discovery” or “e-discovery” as the legal term for the process of identifying and collecting electronically stored information (ESI) as evidence, including emails, documents, databases, audio and video files, website content – and social media data.

Those in the justice system familiar with the current state of e-discovery share a consensus that officials should act now to ensure that the process is handled expertly and inexpensively going forward. In a 2010 report, Electronic Discovery in the New York States Court, the NYS Unified Court expressed concern about the cost and lack of consistency in handling e-discovery. They noted that ESI is often more difficult to identify and preserve than hardcopy evidence and can be modified or deleted, so new spoliation of evidence laws are needed. In early 2013, the Advisory Committee on Civil Rules met to discuss and propose new e-discovery rules that would better standardize the processes involved in obtaining electronic information.

All forms of social media, including posts and messages on Twitter, Facebook and other popular sites, have complicated legal discovery. According to a recent study by the Pew Internet & American Life Project, 50% of Facebook users desire to keep data regarding their relationships, communications, photos and interests private. Many individuals assume that what they post is protected by privacy laws and is not discoverable, though the reality is courts continue to find that individuals generally do not have a reasonable expectation of privacy on social media sites — regardless of their privacy settings.

Recently, Governor Cuomo signed a bill amending New York’s protective order statute, allowing individuals who are not party to a lawsuit to object to discovery of evidence associated with them. While ESI and social media discovery concerns were not behind this decision, it will certainly have an impact on what is considered discoverable in online communities. For example, an individual involved in a child support case claims a low income. In a private Facebook message, a friend mentions an expensive trip they took together recently. With this new ruling, if this message is discovered as evidence in the case and the friend is subpoenaed, he would have the right to object.

Every minute, social media users create massive amounts of data. According to Founder & CEO of Josh James, Facebook users share 684,478 pieces of content; Tumblr blog owners publish 27,778 new posts; YouTube users upload 48 hours of new video; Foursquare users perform 2,083 check-ins; Flickr users add 3,125 new photos, and Instagram users share 3,600 new photos.

Clearly, as social media sites increase in popularity, so does the need to address issues of e-discovery and preservation of social media data. As court and government officials become more aware of the need for standardized rules in the process, so too should the over one billion social media users gain a better understanding of what they should – and should not—share in online communities.

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Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

Type 2 Diabetes Risk: Antipsychotic Drugs and Children

The use of second generation antipsychotic drugs (SGAs) appears to increase the risk of Type 2 diabetes in children, according to a 2001-2008 study by the Agency for Healthcare Research and Quality. While it was previously known that SGAs could double adult users’ chances of developing diabetes, the study suggests that children who are prescribed them are three times as likely to be diagnosed with the condition.

Published in JAMA Psychiatry earlier this year, the study examined the state-provided, anonymous medical records of approximately 43,000 youth under 24 years of age in Tennessee. About 29,000 were recent initiators of SGAs while 14,000 matched controls were receiving other treatments. Researchers found an estimated 16 additional cases of Type 2 diabetes per 10,000 children taking antipsychotic drugs for one year, with increased risk from cumulative dose.
SGAs, also referred to as atypical antipsychotics, are used in the treatment of severe mental health conditions including schizophrenia, schizoaffective disorder and mania. By altering the effects of natural chemicals in the brain including serotonin and dopamine, they regulate mood, emotions, sleep, appetite and other aspects of behavior. While side effects vary by individual drug, SGAs generally cause weight gain, changes in blood sugar level and increase in insulin resistance which all heighten the risk of diabetes.

The use of antipsychotic drugs in children is becoming more and more common. Since 2002, prescriptions for patients under 17 years of age have increased 65% — from 2.9 million to 4.8 million—according to the US Food & Drug Administration. While the FDA has approved SGAs such as Abilify and Seroquel for treatment of schizophrenia, many young people are now prescribed them for bipolar disorder, ADHD, depression and other mood disorders when other psychiatric medications including antidepressants, lithium and psychostimulants are available.

The researchers in the AHRQ study excluded any children who suffered from conditions that could only be treated by SGAs, noting that all those involved were taking antipsychotics for non-psychosis related mood, attention or behavioral disorders. Dr. Wayne Ray, professor of Preventive Medicine and a senior author of the study, said the findings should make doctors more cautious about prescribing antipsychotics to children. “If it turns out that the child does ultimately need an antipsychotic, they should be carefully monitored for metabolic effects and the dose should be as low as possible for the shortest amount of time,” he said. Given the additional risk, why would a doctor choose to prescribe SGAs when alternative treatments are available? One Rutgers University study in 2010 found that children from low income families receiving Medicaid are four times as likely as the privately insured to be prescribed anti-psychotic medication because they do not have access to the best known alternatives: cognitive-behavioral therapy and counseling.

In July,16 State Medicaid directors released a study recommending states require second opinions, outside consultations and other methods to ensure SGAs are not improperly prescribed. Some states including Florida and California have already put laws in place restricting doctors from dispensing SGAs to children. Without authorization from the state, children younger than 3 in Texas cannot receive antipsychotics and Arkansas now requires parents to give informed consent before a child is prescribed an anti-psychotic drug.

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Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

The SUM Bill and Insurance Law

In June 2012, the New York State Legislature passed an amendment to the Insurance Law that would protect car insurance policyholders and their loved ones from injuries caused by uninsured and underinsured drivers. The SUM bill requires that a driver’s SUM insurance limit match their liability coverage — unless the driver chooses to decline the cost of the added protection. The amendment was later vetoed by Governor Cuomo in December 2012.

In New York State, drivers are currently required to carry 25/50/10 in bodily injury and property damage liability on their policy. This means that $25,000 is the maximum amount payable for bodily injury per person; $50,000 is the maximum payable per accident; and $10,000 is the maximum payable for property damage including the other driver’s vehicle as well as street signs, buildings, light posts, etc.

If an accident is deemed your fault, in theory your insurance policy will compensate any parties injured by your carelessness. The problem occurs when the negligent party has little or no insurance on the car. Often the most dangerous drivers have low policies because risk-factors (including previous accidents, speeding citations and DWIs) have given them high premium rates. Others are just trying to save money by lowering their insurance coverage; NY is 4th in the nation for auto insurance costs according to a 2013 report by the Insurance Information Institute.

Whatever the reason, many individuals are paying the minimum of $25,000 – hardly enough to cover a serious accident. In 2010, the National Safety Council reported the average cost of an accident with disabling injuries is over $70,000. SUM (Supplementary Uninsured/Underinsured Motorist) coverage allows individuals to “supplement” the insurance of negligent drivers who cause an accident. For example, if the victim has liability coverage of $100,000 with SUM benefits while the driver at fault has the state minimum of $25,000, the latter would be considered “underinsured.” The victim could then receive the $25,000 from the negligent driver’s insurance company as well as $75,000 from their own. Such was the case in a 2012 lawsuit that energized the issues surrounding SUM insurance. In June 2010, 24-year old Johns Hopkins graduate Kaitlynn Fisher was killed in an intersection collision in Baltimore, Maryland. Fisher’s estate asserted a liability claim against the driver and her own insurer, Progressive, for compensation and SUM benefits. Progressive declined to pay out the benefits claiming that Kaitlynn was the negligent party, thereby creating a highly-publicized controversy. A lawsuit against the surviving driver determined that Kaitlynn was not the negligent party and the case was eventually settled.

In August 2012, a New York Times article referred to the incident as “The Auto Insurance Case That Blew Up on the Internet.” Aside from being a PR nightmare for Progressive insurance, the case also caused many officials and individuals to take a closer look at car insurance and policyholders’ understanding of it – particularly with regard to SUM coverage. The law remains that insurance companies do not have to offer more than the state required minimum of $25,000 unless a policy holder requests more body liability coverage. The new amendment would have required insurers to provide increased SUM coverage matching the chosen liability limits, though individuals could opt to decline it via a waiver or statement. In lieu of Governor Cuomo’s decision, a debate over whether the amendment protects responsible motorists or is unfair to consumers continues. The New York State Trial Lawyers Association (NYSTLA) says the amendment keeps taxes low for New Yorkers because underinsured drivers will not have to rely on benefits like Medicaid. Others, including The New York Public Interest Research Group praise it for potentially reducing auto fraud by medical companies who have a history of excessive billing, while United Policyholder (UP) feels it encourages people to be more financially literate and take more interest in how their coverage works. The bill’s sponsors are currently moving on a modified bill to address the governor’s concerns.

Opponents of the amendment like Governor Cuomo and the group New Yorkers Stand Against Insurance Fraud believe the law will unfairly increase insurance rates for NY drivers who already pay more than the national average. The governor stated in his veto message that “consumers should be free to choose what level of SUM coverage makes sense to them” and should not have to “affirmatively opt-out of such coverage.”

Despite the debate, many drivers remain unaware that SUM coverage exists. For a comparatively small premium (usually around $50-$100 per year) SUM coverage can protect those involved in an accident from the low insurance policies of negligent drivers. If an individual is injured by a driver with no insurance, an expired policy, a stolen car or a hit and run, SUM insurance will be their only compensation. The founder of UP, Amy Bach, points out that while awareness is low and insurers undersell SUM coverage, if drivers knew about it they would likely opt for it as a “common-sense” addition to their policy.

The mission of the New York State Trial Lawyers Association is “To promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers.” Okun Oddo & Babat partner, David Oddo is an active member of the NYSTLA.

Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.

A Landlord’s Failure to Maintain Property

Recently, a Bronx Housing Court Judge sentenced a Bronx landlord to 30 days in jail for neglecting to make needed repairs on his apartment building. While the landlord claimed he was unable to make needed repairs to his apartment building due to lack of funds, he was unable to prove this claim in court. His 12-unit Bronx apartment building had more than 300 open violations and the building is considered, according to an article by Denis Slattery in the New York Daily News on October 9 to be “one of the 200 most distressed structures in all of New York City.” Slattery’s article also states that as a result of the landlords negligence, the city has spent over $100,000 fixing water leaks, providing heating fuel, removing lead and on other emergency repairs. He quotes the commissioner of the city Department of Housing Preservation and Development, RuthAnne Visnauskas as saying “If you neglect your property and your tenants, disregard your legal responsibilities, and defy court orders, we will seek the maximum penalties available under the law,” HPD is responsible for developing and maintaining the city’s affordable housing units. The agency is headquartered in Lower Manhattan, and includes smaller branch offices in each of the city’s five boroughs.

It is a landlords lawful responsibility to maintain their property. These responsibilities are outlined in many laws and codes which are enforced by the HPD and include issues regarding heat and hot water, bed bugs, infestation, carbon monoxide detection, mold, and lack of window guards. Potential housing code violations and tenant rights and responsibilities are available on the HDP website.

Last month the Daily News also reported on a tenant lawsuit in Manhattan Housing Court over an uninhabitable apartment in Lenox Avenue, citing collapse ceilings and walls, rat infestation and mold.

Many landlords fail to ensure for a tenants’ safety. Tenants who have concerns regarding landlord neglect may choose to seek the legal advice of a lawyer who handles tenant and landlord disputes. If you or someone you know has suffered illness or injuries or from apartment accidents and from landlord negligence, the experienced New York attorneys at Okun, Oddo & Babat can help you. Don’t hesitate to contact us or call us at 212.642.0950 to discuss your case.

Article by Madeline Mohr for Lavery Design Associates, Ltd. copyright 2013.
This article may not be reproduced without permission from the author.

Cardiovascular Disease, Heart Surgery and Wrongful Death

Cardiovascular disease is the leading cause of death for New York citizens and the worldwide population. The World Health Organization (WHO) reports that in 2008, 17.3 million people died due to CVD, representing 30% of all global deaths. According to the New York State Department of Health’s comprehensive report, The Burden of Cardiovascular Disease in New York, approximately 40% of NYS deaths in 2008 were caused by CVD.

Often called “heart disease,” CVD includes a number of conditions that affect the heart and circulatory system. Common types are:

  • Coronary Heart Disease: Build-up of fatty deposits on blood vessel linings
  • Congenital Heart Disease: Malformations of heart structure existing at birth
  • Congestive Heart Failure: Failure to pump enough blood throughout the body
  • Pulmonary Heart Disease: Slowed or blocked blood flow into the lungs
  • Rheumatic Heart Disease: Complication of untreated strep throat / rheumatic fever

While the Center for Disease Control and Prevention projects heart disease will remain the leading cause of death globally for the next 20 years, more people are living with CVD than ever before due in part to heighted awareness, medical improvements and less invasive procedures. For some, illness and death due to CVD can be prevented simply by a healthy, conscientious lifestyle. Known and modifiable risk factors for cardiovascular disease include tobacco use, physical inactivity, poor nutrition, obesity, hypertension, high blood cholesterol and diabetes.
In addition to preventative behavior by individuals, proper pre-care by a doctor is necessary to detect abnormalities in the heart. If a condition is left undiagnosed, it may worsen over time without treatment and can lead to heart attack, stroke or other serious illness and injury. Signs of heart disease medical professionals often mistake for more minor conditions include trouble breathing, chest pain, nausea, dizziness, high blood pressure and pain in the left arm. Once a heart condition is detected, operations may be necessary. As with any surgery, there are risks involved in cardiac operations.

Complications can arise due to a number of factors, including:

  • Abnormal heart rhythms
  • Reactions to anesthesia
  • Tissue damage
  • Severing of the aortic valve
  • Hematomas
  • Heart valve damage or dysfunction
  • Neurological complications
  • Damage to surrounding blood vessels
  • Infection, excessive bleeding or blood clotting
  • Inadequate surgical techniques or inexperience of the surgeon

While cardiac surgeons are among the most highly trained specialists in the medical industry, human error or bad judgment can be a factor in the success of surgery and recovery. Miscalculations can be life-threatening and there are cases when medical professionals do not provide proper care, increasing the risk of further illness, injury or even death. After an operation, close monitoring, medication adjustments and progress evaluations are vital factors in the recovery of a cardiovascular surgery patient. It is important for doctors to notify the patient of any ongoing risks they may have, particularly if additional treatments are needed or they lead a physically demanding lifestyle.

Cardiovascular disease treatments and surgery can save lives but when surgeons and their staff make errors or exercise inadequate medical judgment, it can also end up causing serious harm and in some cases, wrongful death. Evaluating whether medical negligence is involved – whether pre-, during, or post operation – requires the expertise of experienced lawyers. An individual or family that has suffered by inadequate medical care may choose to pursue legal action against the medical professionals involved.

Okun Oddo & Babat specializes in Medical Malpractice and Medical Negligence claims. Contact us today or call or call us at 212.642.0950 to arrange an appointment with one of our experienced New York attorneys. 

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Article by Shea Bergesen for Lavery Design Associates, Ltd. copyright 2013. This article may not be reproduced without permission from the author.