The RGLZ Report

Tips to Prevent Slip and Fall Injuries

PREVENTING SLIP AND FALL INJURIES IN THE WINTER

The Centers for Disease Control and Prevention reports that about 1 million Americans are injured, and 17,000 people die, as a result of slip and fall injuries every year.

Winter tends to be the worst weather for work related slip and fall injuries. OSHA and National Oceanic and Atmospheric Administration (NOAA) are working together on a public education effort aimed at improving the way people prepare for and respond to severe weather.
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First Steps After A Construction Accident

industrial concept with tools and equipment, selective focus on nearest

New York has special provisions to address the unique dangers faced by construction workers. Workers at construction sites are routinely subject to dangerous conditions and potentially serious injury. When a worker is injured, he/she is covered by workers’ compensation. But that is often not sufficient to cover the severe injuries that occur at construction sites. Furthermore, construction sites are usually occupied by numerous employers (contractors, subcontractors) at a time. Often, one of these third parties will be the cause of an injury to a non-employee who is working for someone else on the site. Continue reading

Defective St. Jude ICD / CRT-D Devices

Defective St. Jude ICD / CRT-D Devices

assura-ellipseSt. Jude Medical Implantable Cardioverter Defibrillator (ICD) and Cardiac Resynchronization Therapy Defibrillator (CRT-D) devices – Early Battery Depletion

If you are a New York user of a St. Jude Implantable Cardioverter Defibrillator (ICD) or Cardiac Resynchronization Therapy Defibrillator (CRT-D), you need to be aware of a major defect in the device’s battery that can lead to injury or death at worst, and necessitate immediate replacement of the device at best.

Due to conductive lithium deposits in the battery, it can possibly deplete rapidly enough to lose all power within a 24-hour window. This renders the device completely inoperable. Under normal circumstances, a user of one of these devices would have a significant warning as to a nearly depleted battery, and would be able to plan a replacement far in advance. The potential of a catastrophic and sudden device failure presents a situation where the typical “Elective Replacement Indicator” (ERI) signal may only come 24 hours before the device ceases to function, and many are forced to have their devices replaced immediately.

This defect is not acceptable for such a medical device, as it puts patients’ health at grave risk. Failure of the device to operate can and has led to serious injuries to users of the devices, as well as forcing premature procedures to replace the devices. If you, a family member, or someone you know has been put in this situation, or currently has one of these devices, we implore you to call us. We can help recover money for injuries or other complications stemming from these defective medical devices. We can be reached at 800-734-9445, or via email at Info@RGLZlaw.com.

Relevant FDA Notices

FDA Safety Communications
FDA MedWatch Safety Alert

The RGLZ Street Team And Motorcycle Mike ESQ Wrap Up The Summer Season

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In addition to fighting for people’s rights, RGLZ Personal Injury Law supports our local communities in many other ways. In the last few weeks, we have sponsored two local events that proved to be a great way to reconnect with the public, reaffirm our services, and give back to the communities that turn to RGLZ when they need help or just legal advice.

On September 18th, Accompsett Middle School held it’s second annual Color Run. RGLZ was a proud sponsor of the event, which supported a variety of cultural arts programs in the community. The Color Run was a 4k paint race that has no winners, but excited runners are showered with colored powder at stations along the run. Over 225 people participated and it proved to be successful in raising funds to help the children rediscover art.

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The next week, Motorcycle Mike Esq was out in support of the Nassau County Cruise to The Show, and also sponsored this 7th annual parade and car show, which was a great send-off for an awesome summer. It was a fun-filled 2-day event at Eisenhower Park, with over 1200 show cars, vendors, and even a free concert featuring Eddie Money! Motorcycle Mike gained a lot of exposure at the show, along with connecting with the community.

It was a busy and productive September for the “RGLZ Street Team”, and we can’t wait to come up with even more new ways to conduct positive outreach. Stay tuned, as we transition into the colder months of the year, and if you see us out and about, come over and say hi!

Click to check out our photo album from both events!

Winning the Battle Over Medical Record Copying Costs: The Federal HI-Tech Act

The federal Health Information Technology for Economic and Clinical Health Act (the HI-TECH Act) was passed in 2009 to promote the adoption of electronic medical records.  The Act encompasses many subjects, but some of its provisions can be used to substantially reduce the cost of obtaining electronic copies of medical records.  The Act applies to any medical provider who maintains electronic medical records, and requires a digital copy of the records be supplied at cost upon request.[i]  In practice, this results in a significant reduction in the cost of purchasing medical records.

Under the HI-TECH Act, an individual patient may request the digital record.  In addition, any other person who has authority to act for the patient “under applicable law” can make the request.[ii]  Although this language suggests the patient’s attorney should be able to send the request for electronic records as the patient’s “authorized representative,” that would be wrong.  The agency which enforces the HI-TECH Act, the federal Office of Civil Rights (OCR), has consistently taken the position that the Act will only apply if the request for medical records is in a writing signed by the individual and is authored by the individual; i.e. – the patient (or authorized estate representative).  The OCR takes the position that third-party requests for medical records (i.e. – attorney requests) are governed by state laws, which vary from state to state.[iii]  In New York, the state law is Public Health Law Section 18, which provides that the fees shall be cost-based but in no event in excess of $0.75 a page.

To invoke the Act, therefore, the medical record request must be in a writing signed by the patient.  The attorney can prepare the medical record request for the client’s signature.  The letter from the patient requesting the medical records can be forwarded to the health care provider from the attorney’s office, again, as long as the request is in a writing signed by the patient.  The regulations provide that the client (the individual) can require that the medical records be mailed to a third party designated by the patient (i.e. – the attorney’s office).[iv]  It is also important to note that a HIPAA authorization is not required as part of a HI-TECH Act request for electronic records.[v]

Upon receipt of a request for electronic records under the HI-TECH Act, the health care provider must act on the patient’s request no later than 30 days from receipt.[vi]  Recall, that under the New York’s Public Health Law Section 18, the time limit to produce the records is a “reasonable” time.  If the provider cannot comply within 30 days, it/he/she can extend the time by a one- time extension of an additional 30 days, but must provide a written explanation for the delay.[vii]  Although a medical provider may insist on payment of a copying fee, the records must be sent within the allotted time frame, regardless of whether payment has been made in full.[viii]

While there is no private right of action under the HI-TECH Act, the OCR can investigate complaints and levy fines for violations.   Generally speaking, no penalties will be imposed if the failure to comply is corrected within 30 days after the medical provider knew that the failure to comply occurred.  The Office of Civil Rights may provide “technical assistance” to the provider during this 30-day period to resolve the dispute without penalty.[ix]  Translated roughly, that means that the OCR can contact the provider and work out a resolution. If your client’s request for medical records is made consistent with the parameters discussed above, and you nonetheless receive a bill from the hospital or the copying company for $0.75 a page, your recourse is to make a complaint to the Office of Civil Rights.  The process is relatively painless and can be done online in a few minutes time at the OCR website.[x]  OCR normally will only accept complaints that are filed within 180 days of when you knew, or should have known, that the alleged violation of the statute occurred.

The HI-TECH Act, when invoked correctly, should significantly reduce the cost of obtaining your client’s medical records.  Remember, however, the key to triggering the statute is to have your client demand an electronic copy of the record in a writing signed by the client.

1 42 U.S.C. 17935(e)(1),(2); 45 C.F.R. 164.524
2 45 C.F.R. 164.502(g)(1),(2)&(4)
3 OCR Decision Letters, obtainable only through FOIL request
4 See http:\\www.hhs.gov\hipaa\for-professionals/privacy/guidance/access/index.html ;
45 CFR Sec. 164.524
5 CFR Section 164.524
6 45 C.F.R. 164.524(a)(2)(i-iv); 45 C.F.R. 165.524 (b)(2)(i)(A).
7 45 C.F.R. 164.524(b)(2)(ii)(A)&(B)
8 See OCR Decision, Reference Number 16-225898, dated February 4, 2016, obtainable only through FOIL request.
9 See OCR decision letters, obtainable only through FOIL request.
10 www.hhs.gov/hipaa/filing-a-complaint/complaint-process/index.html

RGLZ’s Newest Attorney: Mary Ann Risavich-Birgeles

IMG_3935RGLZ Personal Injury Law is happy to welcome our newest associate Mary Ann Risavich-Birgeles on board as of May 2016. She is the first new attorney on staff since Christopher Glass joined the team in 2012. Mary Ann studied American History and Political Science at University of Pennsylvania, before moving on to the William and Mary School of Law where she received her law degree with an additional recognition for public service.

Mary Ann has previously done work for the New York State Attorney General’s Office in the area of consumer fraud, as well as the Suffolk County Attorney’s Office. She is a member of the Womens’ Bar Association of New York, the American Association of Justice, the New York State Trial Lawyers’ Association, as well as both the Suffolk County and New York State Bar Associations.

Ms. Risavich-Birgeles will predominantly work on cases in the personal injury, nursing home abuse, and medical malpractice fields; adding even more strength to RGLZ’s already considerable talents in those practice areas.

The entire firm is excited to have her on board, and we can’t wait to see her take on the sort of serious cases that RGLZ is known for. We’re confident that she will flourish in her new role, and only reinforce RGLZ’s sterling reputation for excellence both inside and outside of the courtroom.

Are You Paying Too Much for Subpoenaed Medical Records?

CMG Blog Header (1)Any lawyer who routinely purchases medical records as part of their practice is familiar with the ubiquitous $0.75 charge per page.  However, does Public Health Law Section 17 and 18’s provision, requiring medical records be furnished to patients at a maximum of $0.75 per page, apply in the context of subpoenaed medical records?  A reading of CPLR §8001 suggests the answer is no.

CPLR §8001(c) governs the permissible charge for a party who receives a subpoena for a “transcript of records.”  Subsection (c) reads, “Wherever the preparation of a transcript of records is required in order to comply with a subpoena, the person subpoenaed shall receive an additional fee of ten cents per folio upon demand.”  A plain language reading of the section suggests that §8001(c) governs subpoenas for any type of records, mandating payment of $0.10 per page (rather than $0.75).  Unfortunately, there is virtually no case law interpreting §8001’s meaning behind the term, “transcripts of records” (and whether “transcripts” include medical records).

However, legislative records provide good reason to believe the legislature’s intention was for CPLR §8001(c) to apply to subpoenaed medical records.  A pair of proposed bills sponsored by New York State Senator Kemp Hannon attempted to carve out an exception to CPLR §8001(c), specifically for medical records.  Both proposed bills were unsuccessful.   Proposed bill number S05076A, submitted on April 21, 1999, provided for an exception to subsection (c) that would apply only to reproduction of “patient information or clinical records”, in which case “section 18 of the Public Health Law” would apply.  A legislative report on Senator Hannon’s proposed bill, prepared by the Committee on Civil Practice Law and Rules, noted the bill was disapproved.  The report reads “The amendment would leave the ten cents per folio rate for everything but medical records.  There is no evidence that it costs more to reproduce a medical record than other kinds of records.  If, as is probably true, ten cents per folio is too low, it would make more sense to raise the rate for all records.”  Senator Hannon again submitted the proposed bill, now under proposed bill number S2949, on February 27, 2001.  However, Senator Hannon’s proposed language, amending CPLR §8001(c), was never added.

Despite no binding Appellate or Court of Appeals decisions declaring that CPLR §8001(c) applies to the subpoena of medical records, the great bulk of evidence suggests that it does.  As such, if you are paying $0.75 per page for subpoenaed medical records, you are simply paying too much.

6 Years of the Motorcycle Mike Poker Run

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On June 4th, “Motorcycle Mike” Levine was happy to host his sixth annual motorcycle poker run for charity, in support of United Cerebral Palsy of Suffolk. This run brings out bikers from all over New York to ride for a cause, and has become a staple early in the riding season for many of these bikers. Every year, thousands of dollars are raised, and all money taken in from the run and subsequent party goes directly to the charitable cause.

United Cerebral Palsy works to support the betterment of the lives of countless people with a range of disabilities, and we were extremely happy to have been able to raise over $5,000 for them, which will go directly into these programs which help their participants develop skills and interact in ways which dramatically improve their standard of living.

With the help of 102.3 WBAB, we put on a great party with live music, vendors, food, and the first ever Ultimate Road Trip contest, where 10 entrants had a chance to win a bike and trip. Everyone ended up going home with a prize of concert tickets thanks to the generosity of our partners, and we would like to thank Full Throttle Magazine, CYA Action Funwear, The Us Vets Motorcycle Club, and the Enders Motorcycle Club for their support this year.

The most rewarding part of the event was seeing the joy on the faces of UCP program participants who could make it down to see things in action. Being able to provide an experience like this for them is what makes it all worthwhile, and it’s what we’ll remember best about this year’s event.

For more photos from the event click here!