On March 28, 2017, President Trump signed an Executive Order to dramatically shift course from the climate change focus of the Obama Administration. The Order has several components which will affect United States Environmental Protection Agency (EPA) climate regulations along with energy production activities. A key aspect is the revocation of the Clean Power Plan rule issued by EPA. As previously reported on in this column, on August 3, 2015, the EPA issued the Clean Power Plan rule that sets the first limits on carbon emissions from power plants in the country. Although issued with celebration by the Obama Administration and various environmental groups, the rule issued under the Clean Air Act has generated significant opposition from the states, the power industry and business. The previous administration used the rule in conjunction with the Paris Climate Summit to demonstrate its green focus and steps to address climate change concerns. President Trump’s Order requires the EPA to review and repeal, or revise the Clean Power Plan. The rule seeks to achieve a 32% reduction in emissions from 2005 levels by 2030. The goal is to reduce carbon dioxide in the power industry, which would be accomplished by reducing coal’s share of the electric production portfolio. Coal presently provides about 39% of the country’s power. However, EPA predicts that it will supply 27% based on the rule and market forces, including competition from natural gas. At the moment, the rule is currently being challenged by various parties, including the coal industry, power providers, business groups and states. The legal challenges pertain to significant legal questions about whether EPA has the constitutional authority and statutory basis under the Clean Air Act to issue the rule, and that EPA is going from regulating single emission sources (i.e., plants and smokestacks) to a sweeping re-design of the U.S. energy system. Opponents have pointed out that the rule appears to conflict with principles of federalism under existing Clean Air Act programs, because EPA generally sets emission limits and allows states to meet them, but the rule instead requires states to meet a national model. Another concern is whether EPA has double-regulated existing power plants, which is prohibited under the Clean Air Act. After the rule was finalized, West Virginia and 25 states filed suit challenging the Clean Power Plan. Other cases have been filed by the U.S. Chamber of Commerce and more than a dozen industry groups. Conversely, 18 states, including New York and California, have sought to intervene in the cases in support of the EPA’s rule. Implementation of the rule was stayed by the U.S. Supreme Court in February 2016. The case has been argued before the full D.C. Circuit of Appeals and a decision is pending. Aside from directing EPA to review, repeal or revise the rule, it appears likely that the Trump Administration will direct the Department of Justice to refrain from defending the rule in the pending court challenges. The Executive Order also included a few other shifts in direction from the prior administration. The Order directs federal agencies to eliminate the use of the social cost of carbon as a consideration in federal agency action and funding decisions. The Order also eliminates a temporary halt on new coal leases on federal lands imposed by the Obama administration. The Department of Interior had been directed to refrain from issuing coal leases until environmental review of the estimated impacts of the leases on global warming were conducted. The past administration also banned methane gas emissions from oil and gas wells on federal lands. The Order eliminates that prohibition, so that coal, oil and gas production can proceed on federal land in an effort to grow domestic energy production. In announcing the Order, the President’s spokesman noted that the Administration believes that “[t]his order will keep energy and electricity affordable, reliable and clean in order to boost economic growth and job creation.” On March 30, EPA Administrator Scott Pruitt wrote to state governors saying that, based on the President’s Order and Supreme Court stay “[i]t is the policy of the Environmental Protection Agency (EPA) that States have no obligation to spend resources to comply with a Rule that has been stayed by the Supreme Court of the United States.” Further that “[t]he days of coercive federalism are over,” and that the EPA would work with “your state experts and local communities as we develop a path forward to improve our environment and bolster the economy in a matter that is respectful of and consistent with the rule of law.” While the Executive Order is a significant step forward for the Trump Administration to address energy production and independence, there are still important aspects of the Obama Administration’s climate legacy left unaddressed. First, the EPA’s endangerment finding on carbon dioxide that was issued in 2009 following the Massachusetts v. US EPA decision remains in place for the time being. Additionally, the Trump Administration has yet to withdraw from the Paris Climate Treaty. However, the Order leaves little question that the Trump Administration is intent on removing expansive EPA regulations that opponents believe will impact development and use of America’s energy resources, and increase consumer energy expenses. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

For attorneys attempting to collect non-commercial debts for their clients, familiarity with the Fair Debt Collection Practices Act (FDCPA) is essential. The unwary attorney serving as a “debt collector” may expose him/herself to liability for failing to strictly comply with the mandates of the FDCPA, including providing debtors with notices of their rights under the statute. In 1977, the FDCPA was enacted to protect consumers from abusive debt collection practices and insure that reputable collectors were not competitively disadvantaged. The statute is codified at 15 U.S.C. § 1692 et seq. The FDCPA articulates a non-exclusive, 16 item list of prohibited collection activities, and generally prohibits debt collectors from using “any false, deceptive or misleading representations or means” while collecting debts. In addition to the enumerated prohibitions, section 1692g of the FDCPA also requires that debt collectors provide debtors specific notice of their rights under the statute within five days of the debt collector’s initial communication with the debtor. These required notices must be prominent and conveyed effectively to the debtor. Other content or notices included in the initial communication from the debt collector must not diminish or contradict the FDCPA required notice in any way. Courts use the least sophisticated consumer standard to determine whether an FDCPA notice is false, deceptive or misleading. In fact, if the collection notice is open to more than one reasonable interpretation, at least one of which is inaccurate, a collection notice is misleading. Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir.1993). For example, the Second Circuit recently found that a debt collector’s failure to disclose the ever-increasing nature of the debt constituted a violation of section 1692e’s prohibition on false, deceptive or misleading statements of the amount owed. See Avila v Riexinger & Assoc., LLC, 817 F.3d 72 (2d Cir. 2016). In Avila, the Court found that failing to disclose that the debt continued to increase could lead the least sophisticated consumer to believe that payment of the amount in the notice would satisfy the entire debt. Where debts continue to accrue, the Avila Court provided a safe harbor, suggesting that debt collectors use the language adopted by the Seventh Circuit in Miller v. McCalla et al., 214 F.3d 872 (7th Cir.2000) or the Connecticut District Court in Jones v. Midland Funding, LLC, 755 F.Supp.2d 393, 397–98 (D.Conn.2010). What often seem to be minor changes or variations to the statutory language on an initial communication letter can invite an FDCPA claim. Last month a Wisconsin Federal District Court Magistrate Judge found that the Plaintiff stated an FDCPA claim where a demand letter included a check-the-box option with the following language: “I am disputing the validity of this debt” followed by “Reason for Dispute (required)”. Mikolajczyk v. Universal Fidelity, LP, Case No. 16-CV-1382, (E.D. Wis. 2017). Noting that consumers are not required to provide a reason for disputing the debt, the Magistrate Judge found that the consumer had stated a claim for false, deceptive, or misleading representation of the debt. This decision is notable because the demand letter at issue is similar to the model demand letter prepared by the Consumer Finance Protection Bureau in its August 2016 outline of debt collection rule proposals. The FDCPA creates a private cause of action by the debtor against the debt collector within one year from the date of the violation. Pursuant to § 1692k, a debt collector who violates the FDCPA may be liable for any actual damages sustained as a result of the violation; statutory damages of up to $1,000; in a class action, statutory damages of up to $500,000 or 1% of the collector’s net worth; and the costs of the action, including reasonable attorney’s fees. Defendants of an FDCPA claim can receive an award of attorney’s fees where an action was brought in bad faith or solely for the purpose of harassment. The FDCPA applies to attorneys whose principal business purpose is the collection of debts or who regularly collect or attempt to collect debts owed to another. 15 U.S.C. § 1692a(6). For attorneys, the key provision is what constitutes “regularly”. The Second Circuit identified the following factors in determining regularity: (1) the number of debt collection communications sent and/or litigation matters; (2) frequency of collection communications/litigation activity; (3) whether personnel are dedicated to work on debt collection activity; (4) whether there are systems or contractors in place to facilitate collection activity; (5) whether there are ongoing client relationships that have retained the attorney to assist in the collection of consumer debts; (6) the role of debt collection work in the attorney’s/firm’s practice; and (7) whether the law practice seeks collection work or markets itself as having debt collection expertise. See Goldstein v. Hutton, Ingram, Yuzek, Gainem, Carroll & Bertolotti, 374 F.3d 56, 62-63 (2nd Cir. 2004). Before sending a demand letter on a non-commercial debt, the prudent practitioner will insure that his/her initial contact with a debtor complies with the FDCPA. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Though we are now almost a year into mandatory e-prescribing, I still have some questions, especially when things don’t happen in the standard manner. For example, what if some information in my e-prescription needs to be changed after I’ve sent it to my patient’s pharmacy? What if some information is missing from my e-prescription? If your e-prescription was missing some information, but was capable of being sent by your office and received by the pharmacy (the systems on each side did not issue some kind of error message as a result of missing information), the pharmacist may annotate your e-prescription apparently without restriction if the drug was not a controlled substance. However, if the drug was a controlled substance, the pharmacist may only annotate the e-prescription for certain missing information. The same applies if the e-prescription was complete when sent but some of the information now needs to be changed. The pharmacist may add or change the patient’s address, sex or age without getting an authorization from you. For any controlled substance e-prescription, the pharmacist needs your authorization to add or change your DEA number, the institutional DEA number suffix (if applicable), directions, condition code, drug strength and maximum daily dosage. A prescription that is missing maximum daily dosage may be filled without your having supplied an authorization for that item; this is one that the pharmacist may complete on his or her own, using professional judgment. The pharmacist needs your authorization to change the quantity or dosage form on a controlled substance e-prescription, but may not add those if missing. The pharmacist may never add or change the patient’s name, your e-signature, the date on which the e-prescription was written or the drug name. The pharmacy must electronically store any annotation made to the e-prescription, whether or not your authorization was required. However, if your authorization was required for an annotation, you must make a note in the patient’s file of the addition or change and the specifics of how and why the annotation was made. The pharmacist may contact you by telephone to clarify a condition code. If for any reason, the prescription was issued on an Official New York State Prescription form, the pharmacist is required to write on it the date on s/he received your oral authorization and sign it manually. Remember that pharmacists are no longer required to verify that prescriptions have been properly issued other than electronically. The burden is on you as the prescriber to assure that a valid exception to e-prescribing exists before submitting a prescription by any other means. Download the Reprint from The March/April 2017 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The U.S. Supreme Court recently announced that it would review whether, as a condition of employment, employers can require employees to sign arbitration agreements that contain a waiver of the employees’ right to participate in class and collective actions.­ In 2012, the NLRB decided that such class action waivers violated employees’ rights.  Federal courts around the country, however, have not been in agreement on this issue.  ­The Second Circuit Federal Court of Appeals, which governs federal claims brought in New York and several surrounding states, decided that arbitration agreements that contained the waivers were enforceable. Given the split around the country, the Supreme Court’s decision will provide certainty to employers on this issue.  It will also give employers a chance to see how President Trump’s choice for Supreme Court, likely to be on the bench by the time this matter is decided, will decide employment-related cases. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Mark Greisberger has joined the law firm of Underberg & Kessler LLP as an of counsel attorney in Rochester, New York. Mark will focus his practice in the areas of real estate, trusts and estates, and corporate and business law. Mark earned his B.A. from Dartmouth College, and his J.D. from Vanderbilt University. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Writing this column in December 2016, now a month past the surprising presidential election result, brings with it many uncertainties. Predicting environmental policy in new administrations is challenging under normal election conditions, but with a businessman about to assume the presidential office in January, the level of uncertainty is at an all-time high. However, based on numerous controversial Obama Administration environmental policies and recent nomination news, we can at least highlight key areas of focus in the coming year. First, President-elect Donald Trump nominated Scott Pruitt to be administrator of the United States Environmental Protection Agency (EPA). Pruitt is Oklahoma’s attorney general and has been a key challenger to President Obama’s expansive environmental policies. He has been a leading state official pushing back in support of states’ rights and in opposition to the expansion of EPA’s regulatory agenda over the last several years. In particular, he has participated in suing EPA to invalidate the Clean Power Plan (CPP). As reported on in this column, the Clean Power Plan was issued by the Obama EPA in August 2015 and sets limits on the carbon emission from power plants in this country. Following his nomination to head EPA, Pruitt was quoted in the Washington Examiner stating that “[t] he American people are tired of seeing billions of dollars drained from our economy due to unnecessary EPA regulations, and I intend to run this agency in a way that fosters both responsible protection of the environment and freedom for American businesses.” Another proposed appointment, Sen. Jeff Sessions as attorney general, is likely to bring about significant changes in U.S. environmental policy based on which cases will be brought and which will be defended on behalf of the nation. Like Pruitt, Sessions is a former state attorney general (Alabama) with a healthy respect for federalism and the law. Hence, EPA programs which have been instituted through executive action or go beyond the clear bounds of environmental law, such as the Clean Air Act and Clean Water Act, are likely to face skepticism. The EPA’s current push to regulate in the area of climate change is going to be subject to swift challenge in the new administration. While it has been lauded by environmental groups, the business and energy communities have challenged the CPP as exceeding the authority of the Clean Air Act and imposing excessive costs on power plants. The CPP is currently subject to challenge by 28 states and was stayed by the U.S. Supreme Court in February 2016. The attorney general and Department of Justice will need to make a determination on further handling, and potential defense, of the case. A decision not to prosecute the appeal could lead to the regulation being overturned. Similarly, even if defended, a new EPA administrator could seek to revise the regulations. In other climate-related litigation under the Clean Air Act, 24 states have brought suit against the EPA’s new source performance standards for carbon dioxide emission from new power plants. This recently adopted rule has generated significant opposition from the business community. Like the CPP, the manner in which the Department of Justice defends the challenges, as well as how new EPA management chooses to address the rule could significantly change. The Paris Climate Accord, announced by the Obama Administration late in 2015, is also in doubt. Since the current administration attempted to avoid the need for Senate ratification of a treaty and adoption by simply taking executive action, a new administration may have a different view on compliance with the international consensus agreement. Similarly, the waters of the United States rule issued by EPA in August 2015 dramatically expands the scope of jurisdiction over federal wetlands and waters under the Clean Water Act. The rule has been challenged by more than 18 states. The Sixth Circuit recently issued an injunction against enforcement of the rule. New EPA and Army Corps of Engineers management could withdraw support for the rule or substantially revise it in line with the limits of the Clean Water Act. Federal energy policy is likely to change dramatically under a Trump Administration. The current administration has focused on solar, wind and green energy areas, largely with significant federal subsidies, while taking steps to heavily restrict energy development and production. Notably, through restrictions on energy development on federal lands, offshore drilling and hydraulic fracturing regulations. The recent announcement that Rick Perry, former Texas governor, has been nominated as Energy secretary is an indicator that policies may change profoundly. The president-elect has stated an interest in moving forward with exploring and producing American energy by American workers. This represents a significant change from the current administration. Also, the protracted review and ultimate denial of the Transcanada Keystone XL pipeline from Canada will likely be reversed with an approval being issued by the State Department. Exploration, development and transportation of the country’s energy resources are likely to be a key focus of the new administration. Finally, while it would be impossible to track all recently issued environmental- and energy-related regulations issued by the Obama Administration here, Congress may well play a key oversight role. Comments by Republican representatives suggest that Congress may employ the Congressional Review Act to evaluate and withdraw Obama regulations. With control of both chambers and the president’s approval, it will be possible to invalidate rules that Congress determines are inappropriate or beyond the bounds of existing law. While the Trump Administration is likely going to bring profound changes to the approach to governing in all areas, the potential changes from an expansive and costly environmental program over the last eight years may be striking. Although it is certain to bring discontent from environmental groups, the re-calibration toward a more sensible and balanced environmental regulatory agenda may yield significant opportunities for business and employees in many industries. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

My general practice partner and I have noticed an increase in the number of patients who review their doctors online. How do we handle an online review? In an age where patients can (and do) rate their health care providers as they would restaurants and retail stores, online reviews are an increasing reality for medical practitioners. Sites like Yelp, Vitals, RateMDs, Healthgrades and Zocdoc are just a few of the growing number of places patients can rate their health professionals online. Knowing whether and how to respond to online reviews is critical for those in the health care industry. The good news is patients like their providers, and the vast majority of online reviews are positive. However, a negative review criticizing a health care provider’s care and treatment could damage a practitioner’s reputation or influence prospective patients. Upon reading a particularly glowing or critical review, a provider may be tempted to respond to the reviewer. However, publicly responding to an online review is a delicate matter for a medical professional. In acknowledging an online review, it is essential to remember that state and federal confidentiality and privacy laws restrict a provider’s ability to respond. Under the Health Insurance Portability and Accountability Act (HIPAA), even acknowledging the reviewer is a patient constitutes a violation. Health care providers may speak generally about the way they treat patients, but are not permitted to reveal individual patient health information. In general, it is better to address conflicts offline. Responding publicly only provides prominence to the complaint. Health care providers can carefully encourage these reviewers to contact the office directly where their complaint can be handled privately. Most negative reviews involve office management, such as the office wait, the front office staff or office hours. Practitioners can use these reviews as an opportunity to examine and improve, if necessary, the office experience of their patients. Perhaps the best way to handle negative online reviews is to encourage satisfied patients to post reviews online about the care they received. As Justice Louis D. Brandeis famously wrote: “the remedy to be applied is more speech…” Encouraging patients to share their reviews online allows the positive reviews to balance out and overshadow any negative reviews. Consumers know that one negative online review is not representative of a practice. If you ask patients for reviews, however, remember it is illegal to provide anything of value for those reviews, such as discounts or free services. If a review is obviously fake or mistakes your practice for another, contact the review website and explain that the review is not real or does not actually review your practice. Review sites want their reviews to be accurate. Remember not to divulge patient information to the review site as evidence of an inaccurate review. If you receive an online review that necessitates a response, take the following steps: (1) try to evaluate the review objectively and determine if it needs an online response; (2) if the review alleges malpractice, immediately call your attorney; and (3) draft a short, measured and carefully worded response, which does not reveal any patient information. If in doubt, contact your attorney to discuss responding publicly to any online review. Download the Reprint from a 2016 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

For good reason, given the volume of litigation generated by them, restrictive covenants in employment agreements attempting to limit or prevent solicitation of customers have received extensive coverage in employment law articles and blogs. Regardless of what an employment agreement might provide, and even in situations where there is no employment agreement, New York case law (common law) provides that those who sell a business, including that business’ goodwill/customer relationships, may not thereafter solicit those same customers for his or her new business. New York courts have noted that this implied covenant is permanent, does not change over time, and exists independently of any contractual duty not to compete and/or solicit. The current leading case in New York regarding the common law duty of non-solicitation for business sellers is the New York Court of Appeals’ (New York’s highest court) 1991 decision in Bessemer Trust Co. v. Branin. The Bessemer Trust court discussed the long-standing rule and noted that the simplest violation of it occurs where the business seller initiates contact with the former customer on behalf of his/ her new business, particularly where the business seller is in competition in the same industry he/ she was in before. Improper direct solicitations include phone calls, emails, social media and text messages etc., but also include direct, targeted mailings to former customers. Absent an improper solicitation or a separate non-compete agreement, though, the business seller is free to compete in the same industry post-sale. Certainly, though, as the Bessemer Trust court noted, where the seller agrees to an express non-solicitation covenant in a sale contract or post-sale employment agreement, that promise will be given equal or greater weight than where the common law non-solicitation duty is not present. Indeed, the local Fourth Department of the New York State Appellate Division, in Genesee Valley Trust Co. v. Waterford Group, LLC recently held in 2015 that such non-solicitation written agreements are enforced if reasonably necessary to enforce the buyer’s interest in the purchased asset, without resort to the stricter standard of reasonableness applicable to employment agreements where no sale has occurred. ‘Touting’ a business The Bessemer Trust court also discussed that the non-solicitation rule further bars the business seller from “touting” his or her new business, or disparaging the buyer, even where the former customer makes the initial post-sale contact. Finding and offering evidence of improper touting is a much more subtle and difficult task in litigation, but can make a crucial difference. In Honeywell Int’l Inc. v. Stacey, a federal court in Minnesota considered this aspect of the Bessemer Trust decision in noting that solicitation is broader than merely who makes the first contact. The Honeywell court determined that the issue of whether touting has occurred must be on a case-by-case basis, and in that particular case the defendant had not yet done any soliciting. The Honeywell court also recognized the flip side of that issue: In the absence of solicitation (or a separate non-compete promise), the business seller is permitted to accept business from a former customer. In a case decided soon after the Bessemer Trust decision was issued in 2011, the Southern District of New York federal court in USI Ins. Servs. LLC v. Miner found in favor of the plaintiff based on the defendant’s email to everybody in his contact list, including former customers, after he sold his business and goodwill to the plaintiff. The court noted that the defendant was in the exact same industry as pre-sale and that the email at issue contained direct, active solicitation by claiming his new company was superior to the plaintiff. Adding to the defendant’s problems in the case was the fact that some of the recipients of the solicitation email were from a list the defendant had taken from the plaintiff while employed and emailed to himself (this conduct also constituted an independent claim for breach of fiduciary duty). The USI court acknowledged that, while the clients were free to approach the defendant with questions about the plaintiff’s new business, it did not change the defendant’s liability for the solicitations. Another court that recently considered the common law prohibition on a seller of a business from soliciting his or her former customers under Bessemer Trust, Mar-Cone Appliance Parts Co. v. Mangan, noted that the implied non-solicitation covenant prevents the seller from committing a fraud on the sale contract by diverting the very customers just sold. In the Mar-Cone case, the defendant also had an employment agreement non-solicitation promise, and it was important to the ancillary issue of contribution under New York tort law that the court find the plaintiff could proceed under the agreement or under the common law rule and it specifically did so. Earlier this year, a New York state court in Ulster County in a case titled Trimm v. Freese, relied on the Bessemer Trust case (and its predecessor, Mohawk Maintenance Co. v. Kessler from which the rule is sometimes called the Mohawk Doctrine) to uphold a Temporary Restraining Order prohibiting the defendant from contacting his former customers after a business sale. The court actually allowed the TRO to go beyond the Bessemer Trust holding and prohibit the defendant from even answering former customer questions based on the evidence that the defendant had already lied to some former customers that the sale had not worked out. The Trimm court declined to prohibit the defendant from operating a competing business altogether, however, or from general public advertising of the new business on Angie’s List. As should be clear from the above, issues regarding duties following the sale of a business, and restrictive covenants in agreements, present tricky, subtle, fact-intensive distinctions that should be discussed with employment law counsel as early as possible. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP has been named a 2017 Rochester Tier 1 “Best Law Firm” by U.S. News - Best Lawyers®. The firm’s real estate, municipal law and corporate practices were included in the top tier rankings of Rochester law firms.  The “Best Law Firms” are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Have you ever had one of those dreams that you are winning a game show? “Alex, let’s go with ‘Publish or Perish in the Courtroom’ for $1,000.” Your heart races with excitement as Alex announces: “this answer is a Daily Double!” “Is meaningless until published”, Alex says. Your hand smashes down onto the red button as you shout: “What is a verdict?!” The applause of the studio audience fills your dreamy ears. Now, before you go collecting on your imaginary winnings, what does it mean to publish a verdict? The correct answer to this question could save you from the real life jeopardy of calling your carrier to report malpractice. The answer is not in the CPLR where you might expect. CPLR Rule 4112 Entry of a Verdict says: When the jury renders a verdict, the clerk shall make an entry in his minutes specifying the time and place of the trial, the names of the jurors and witnesses, the general verdict and any answers to written interrogatories . . .[.] The statute certainly does not help you in a real situation like this: Say that your client is one of two defendants at trial. This is a big client. Millions of dollars are at stake. During deliberations, the jury asks for a calculator. Beads of sweat appear on the foreheads of your client ant the co-defendant. The co-defendant caves and offers the whole policy to settle. You and your client remain steadfast and refuse to settle. Plaintiff’s counsel reports to the court that “we are settled.” Before the judge realizes that only one defendant has settled, the jury is called back into the courtroom and the judge tells the jury that the parties have reached a settlement. Plaintiff’s counsel quickly corrects the record that a settlement was only reached with one defendant. So the judge asks the jury if they had completed their verdict sheet for your client. After the jury reports that they had, the judge asks to see the verdict sheet, reads it and then reports that the jury unanimously found no cause for action on behalf of your client. Before the judge thanks the jury and sends them home, the verdict sheet is entered into the minutes of the proceedings and a copy is given to the parties. So now comes the Double Jeopardy question of your career: Has the jury properly rendered a defense verdict for your client pursuant to CPLR Rule 4112? If you answered “No”, you would be correct. But, you only saved yourself from malpractice if you also turned yourself into one of those really annoying know-it-alls, and instructed the judge to properly publish the verdict, embarrassing the judge in front of all whose opinions a judge holds dear. The confusing part is that CPLR Rule 4112 doesn’t say anything about a verdict being published to be properly rendered. So you might be rebuffed by the judge. But, hold your ground. According to the common law upon which CPLR Rule 4112 rests, for a verdict to be ‘rendered’ it must be properly published and that means three very specific things: (1) that the verdict be published by having been declared in open court by the jury (not the judge); (2) that the parties be permitted to, or that they waive, polling of each juror as to their verdict (i.e., asking that each juror publish the verdict individually); and (3) that the verdict be entered by the clerk of the court in the minutes of the proceedings. So, in our imaginary trial, you would have had to insist that the judge return the verdict sheet to the foreman. Even though the judge had already read the verdict sheet to everyone, the foreman must still read the verdict sheet out loud, in open court. You must then make sure that the judge offers to have the jury polled so that the losing party cannot later invalidate the verdict by claiming that s/he was deprived of the right to poll the jury. Polling requires that each juror verbally assent to the verdict which had been read aloud. It is not enough for the judge to look at the verdict sheet and report that all the jurors signed the verdict sheet. It is not enough for the judge to globally ask the whole panel if they all agree to the verdict. After the jury has been polled, or polling has been waived, then the judge can have the verdict sheet marked and filed with the minutes of the trial proceedings. Absent the fulfillment of each of these elements, a verdict is not published and no verdict has been rendered. You cannot enforce a judgement for the defense. You cannot collect on a bill of costs. You cannot compel the plaintiff to sign a stipulation of discontinuance. In fact, your client could be looking at a brand new trial. And that would make any trial lawyer wish they were dead. So, remember: Publish or Perish! Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On December 16, 2015, the New York State Court of Appeals issued a decision that has important implications for medical malpractice liability. In Davis v. South Nassau Communities Hospital, the Court held that treating physicians and hospitals owe third parties a duty to warn patients of the risks or side effects associated with medications. In this case, the physicians at the hospital administered medication to a patient that had the potential to impair her ability to safely operate an automobile. The patient subsequently drove away from the hospital and, allegedly impaired by the medication she received, caused an accident with Davis, who sustained injury. Davis sued the physicians and the hospital for medical malpractice for failing to warn the patient of the side effects of administered medication. Although the Court admonishes readers against interpreting this decision as an erosion of the prevailing New York principle that a physician’s duty of care does not extend beyond the patient to the community at-large, this belies the actual effect of the decision. In fact, the decision expands the potential pool of litigants who can sue a physician for malpractice. Specifically, unknown third parties with whom the physician has no doctor-patient relationship now have standing to sue if they have been injured by the physician’s patient. In our view, this case illustrates a shift from prior New York case law which required a direct relationship between the doctor and the patient before a valid medical malpractice action could arise. The Court also argues that its decision imposes no additional obligation on a physician who administers medication to a patient. This argument, however, overlooks the increased burden upon the provider to carefully document the specific warning to the patient, since one has to assume that the patient will not be a credible witness. If the patient ignored the warning and injured someone else while their judgement was impaired by the medication prescribed by the physician the only witness to the warning may be the chart. Physicians should continue to comply with their obligation to advise patients of the specific risks and side effects of administered medications. This decision does not compel physicians to prevent patients from leaving the hospital after receiving certain medication, but requires physicians to ensure that when patients leave the hospital, they are properly warned about the side effects of that medication. Careful documentation of specific warnings to the patient will be critical to defending these cases in the future. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Jessie Gregorio has been named a 2016 recipient of the Rochester Business Journal's Forty Under 40 award.  The Forty Under 40 honorees are professionals younger than 40 who demonstrate leadership in the workplace and in the community.\ Jessie is an associate in the firm's Litigation and Health Care Practice Groups, and focuses her practice in the areas of civil litigation, medical malpractice defense and health care law. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.