Historically, medical treatment could be offered by a physician and surgeon, licensed by the Education Department, or by a hospital licensed by the Department of Health. Over time, in addition to traditional general hospitals, ambulatory surgery centers (among other providers) were also licensed by the Department of Health. Doctors would examine patients in their offices, and then utilize the facilities of a Department of Health licensee if the patient needed an operation. Doctors got paid for their professional services, and facilities got paid for, well, their facilities.

As technology advanced and fewer operations required an overnight stay, many doctors expanded the scope of what they could do in their offices until the office came close to resembling a hospital operating room.  There was nothing specific on the books to limit the scope of what a doctor could offer in her office. So in 2007, the legislature added § 230-d to the Public Health Law, requiring practices where office based surgery takes place to become accredited by an agency, such as JCAHCO (“Joint Commission”), which also accredits hospitals.

Now comes the case of a practice that treated a patient for injuries sustained in a motor vehicle accident. The practice was accredited for office based surgery. The practice billed the no-fault carrier for a professional fee and a facility fee. The carrier balked at the facility fee, and NY’s high court agreed.

The Court of Appeals found that, notwithstanding the accreditation required for office based surgery, there were still differences between OBS practices and facilities licensed by the Department of Health. The court reviewed the applicable regulations, which allowed no-fault payment of facility fees for ambulatory surgery centers, and found they did not provide facility fee payments for office based surgery. The practice argued that there was nothing in the regulation that said it couldn’t get paid, to which the court said “administrators may exercise their administrative authority through silence”.

Score one for the gecko.

Government Empls. Ins. Co. v Avanguard Med. Group, PLLC. (March 31, 2016)


We reported on the Chanko case back in 2014, when the Appellate Division dismissed a family’s claims that ABC, NY Presbyterian and an emergency room physician violated  privacy and subjected them to emotional distress by broadcasting a “NY Med” segment which covered their loved one’s demise. The Court of Appeals –NY’s highest- reinstated the claim against the doctor and hospital for breach of state-law physician patient privilege.*

The court noted that the case was still in the initial pleading stage and the family did not have a chance to conduct discovery. Even if the patient could not be identified by television viewers, it may turn out that medical information was improperly shared with the ABC employees who edited the film. The court noted that while only a few minutes of video was aired, the crew had access to over fifty minutes of raw film.

The court said it was not considering the breach of privilege claim against ABC only because the family did not preserve it for appeal.

As to the intentional infliction of emotional distress claim, the court used the terms “reprehensible” and “offensive” to describe the defendants’ conduct, but found it was not so atrocious and utterly intolerable as to support a claim for intentional infliction of emotional distress.

Chanko v American Broadcasting Cos., Inc. (March 31, 2016).

*Readers are reminded that the federal HIPAA privacy rule provides no private cause of action. See, e.g., Webb v. Smart Document Solutions, 499 F.3d 1078 (9th Cir. 2007).



In the course of a custody dispute, Mom engaged a psychiatrist to evaluate the kids and issue reports to the court. Dad claimed malpractice, defamation and privacy violations, asserting that the psychiatrist damaged his relationship with the children, negatively affected the custody determination, and violated his HIPAA privacy rights.

In a non-precedential memorandum decision, the Court of Appeals, Division One, held that: (1) there was no physician-patient relationship between the psychiatrist and Dad to support a malpractice claim; (2) Mom’s consent to the psychiatric evaluations was sufficient; (3) the psychiatrist’s letters to the court were privileged statement made during judicial proceedings and thus protected from defamation claims; and (4) HIPAA does not provide for private claims.

Case dismissed, except that Dad may amend to pursue defamation claims for any statements the psychiatrist may have made outside the judicial proceedings.

Woolbright v Prince (March 29, 2016).