AOMs and Nursing Home Litigation in New York

Many jurisdictions require some version of an affidavit of merit (AOM) in order to proceed with a malpractice claim. (Here’s a helpful 50-state survey of AOM requirements LINK). In New York, CPLR Section 3012-a requires an AOM to accompany the complaint for all medical malpractice actions. Specifically, this affidavit has to declare that an attorney has reviewed the facts of the case, and has consulted with at least one physician, and that there is a reasonable basis for the commencement of the action. This …

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The ADA and the Internet

Most employers and business owners are generally aware of the requirements set forth by the ADA to accommodate accessibility to buildings and facilities by individuals with disabilities. These guidelines may impact the type of material used or the design of entrances, doorways and the like. However, how many business owners understand that these regulations also govern the Internet? The advancement of technology continues to make it easier for consumers to purchase goods and services without venturing outside. While websites allow companies to market to more …

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Wearable Tech: This Season’s Hottest Litigation Accessory?

We appear to be in the midst of a new fitness renaissance.  Trendy fitness programs such as CrossFit, Zumba and SoulCycle dominate social media mentions, while many others stick with tried and true exercise favorites such as running, swimming, biking, yoga, or a gym membership.  Workouts and personal records are celebrated on people’s blogs, Facebook pages, and Instagram accounts.  The apparent surge in fitness enthusiasm has brought with it a flood of new products designed to take advantage of the market; perhaps none more ubiquitous …

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Cyber Risks for Contractors

Professional have become increasingly reliant on digital technology to run their practices.  This digital revolution has reshaped the way that many professionals operate and has allowed professionals to better service their clients.  At the same time, reliance on technology has created new areas of exposure for professionals.

A recent report from Chubb analyzed how this technological revolution has reshaped the construction industry.  Under the traditional design-bid-build process, a project would be designed by architects under a separate contract with the owner, and then put out …

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Client Communication: What’s Enough/Too Much?

The duty to communicate is essential to every aspect of the fiduciary duty a lawyer owes to the client. Proper communication ensures that we are identifying and serving our clients’ interests. It’s possible today to be technically “available” to clients 24-7. But how much availability is required, and where is the line? That’s the subject of a recent ethics case against a Texas attorney, resulting in sanctions for unreasonably ignoring a client.

The Texas Commissioner for Lawyer Discipline’s petition alleged that the attorney failed to …

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Is a Single Threat Enough to Trigger Liability For Retaliation?

Retaliation claims account for almost half of all EEOC claims filed nationwide.  The 2014 EEOC Enforcement and Litigation data reflects that 42.8% of all EEOC charges are retaliation claims. Therefore, the crucial question when assessing the legal landscape for employers may be: what is enough to trigger liability for retaliation? The question of whether a threat to reduce pay constitutes an adverse employment action is before the Fifth Circuit. The underlying claim was dismissed at the trial level. A reversal of this decision could lead …

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Unintended Waiver: the “At-Issue” Exception to the AC Privilege

The attorney-client privilege, the oldest of the common law evidentiary privileges, seeks to encourage thorough and truthful communication between attorney and client.  Attorneys know, however, that the privilege is not absolute.  One such exception is known as the “at issue” exception, a form of implied waiver of the attorney-client and work product privileges.  This form of waiver is unique because it is one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. Let’s take a closer look at this often …

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Coverage Denied due to Colleague’s Misrepresentations

Professionals maintain professional liability insurance to protect their assets. Provided that the insured and insurer comply with the obligations set forth in the insurance contract, the exposure arising from a malpractice claim shifts from insured to insurer. Yet, about the only thing worse than getting slapped with a malpractice suit is learning that your firm is not covered despite the professional’s belief that insurance was in place.  Consider the possibility that the actions of one of your colleagues could result in a firm-wide declination of …

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Does the “Private” E-mail Exist?

Innovations in technology have blurred the lines between work and private life.  Many professionals regularly utilize personal devices, such as smart phones and tablets, while in the office, and can likewise access company files electronically through work-issued computers while at home.  Given the lack of a bright-line distinction between that which is work and that which is private, employees may be tempted to engage in conduct on personal accounts or devices that would otherwise be clearly prohibited in the office.  

Take, for instance, the recent

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Big Brother in the Office – New Methods of Employee Surveillance

Employers will implement various tools to increase productivity and efficiency, to generate profit, and to create a comfortable office environment. Some employers are utilizing new surveillance systems in the office to achieve these goals, an issue that was recently addressed in the New York Times. Today, the run-of-the-mill security camera is passé. Instead, new technologies track seemingly unlimited data about employees, including the amount and nature of employee interaction with co-workers, clients and customers. This is particularly popular in restaurants, retail stores, and other …

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