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ADMINISTRATIVE LAW Agency must comply with right-to-know law A government agency’s disregard of the timetables in the state right-to-know law cannot be excused for reasonableness or lack of prejudice, the New Hampshire Supreme Court ruled on May 11. ATV Watch v. New Hampshire Department of Resource and Economic Development, No. 2006-020. ATV Watch, a nonprofit group that monitors the use and development of all-terrain vehicles, filed a right-to-know request with New Hampshire’s Department of Resource and Economic Development to find out about the agency’s plan to buy private land to create multipurpose trails. According to the right-to-know law, N.H. Rev. Stat. Ann. � 91-A:4, IV, the agency must release records within five working days of a request unless the agency acknowledges receipt of the request and indicates a reasonable time within which the records can be produced. The agency notified ATV Watch that it would release some of the records after consulting with the attorney general, which it did a month later, but the agency also withheld other records, which it later released, without explanation. ATV Watch filed suit, claiming the agency’s delayed disclosure violated the right-to-know law. The trial court ruled that, while agency had technically violated the right-to-know law, its conduct was reasonable and ATV Watch was not prejudiced. The New Hampshire Supreme Court reversed. The time period for responding to a right-to-know request is absolute. The law’s language doesn’t allow for consideration of factors the trial court considered, such as “reasonable speed,” “oversight,” “fault,” “harm” or “prejudice.” Full text of the decision ATTORNEY FEES Quantum meruit no basis for guardian ad litem fees A court-appointed guardian ad litem may not be awarded fees in excess of statutory limits based on a theory of quantum meruit if the requirements of the statute have not been met, the Iowa Supreme Court held on May 11. State Public Defender v. Iowa District Court for Woodbury County, No. 29/04-2028. As a result of her appointment by the juvenile court as guardian ad litem in a child-in-need-of-assistance case, Elizabeth Rosenbaum submitted a fee claim of $2,195 for her services. Under Iowa Code � 13B.4(a), the statutory limit in a child-in-need-of-assistance proceeding is $1,000. Because Rosenbaum filed an untimely application to exceed the statutory limit and there was no finding of good cause for the late filing, the public defender reduced her fees to the statutory amount plus reasonable expenses. Rosenbaum filed a motion for review of her fee claim, arguing that she was entitled to her entire fee claim on the basis of quantum meruit or reasonable value for services. The juvenile court ruled that. though Rosenbaum had not complied with the statutory requirements governing compensation of court-appointed attorneys, she was entitled to fees in excess of the fee limitations under a theory of quantum meruit. The public defender filed a petition for writ of certiorari, arguing that quantum meruit cannot be used to supersede the statutory requirements of Section 815.10A(2). The Iowa Supreme Court reversed and upheld the writ. Section 815.10A(2) sets out the procedure for recovering fees in excess of statutory limits, which includes the filing of an application prior to any exceeding of the statutory fee limit. The court said that allowing a recovery in this case based on quantum meruit would undermine the purpose behind the statute of protecting the taxpayer from costs for unnecessary services. CIVIL PRACTICE Federal law pre-empts Ga. records release law A Georgia law requiring plaintiffs in medical malpractice actions to release their medical records is pre-empted by the federal Health Insurance Portability and Accountability Act, the Georgia Supreme Court held on May 14 in a case of first impression. Allen v. Wright, No. S06G2018. Earnestine Wright sued Thomas Allen, a physician, and others, alleging medical malpractice. Allen moved to dismiss Wright’s suit, alleging that Wright’s executed authorization to release her medical records failed to comply with Georgia’s law requiring plaintiffs in medical malpractice actions to release their medical records, Ga. Code Ann. � 9-11-9.2. A trial court denied the motion, holding that Section 9-11-9.2 is pre-empted by the federal Health Insurance Portability and Accountability Act (HIPAA). Affirming, the Georgia Supreme Court agreed that HIPAA pre-empts state law. The court said. “State law may provide for more stringent requirements on the disclosure of protected health information than HIPAA does, but cannot authorize disclosure based upon less stringent requirements than those mandated by the federal law . . . .If the state statute is to be amended or rewritten so as not to be preempted by the federal enactment, that is the responsibility of the [Legislature] and not the courts.” CONTRACTS Florida law applies to tortious interference suit A Florida trial judge wrongly applied Mexican law in a suit alleging tortious interference with a contract for the services of a Mexican soap opera star, the 11th U.S. Circuit Court of Appeals held on May 10. Grupo Televisa S.A. v. Telemundo Communications Group Inc., No. 05-16659. Mexican actor Juan Mauricio Islas Ilescas was under exclusive contract with Grupo Televisa S.A., which licenses an American broadcaster, Univision Communications Group Inc., to carry prime-time soap operas in the United States. Islas signed a contract with Telemundo Communications Group, which owns the Telemundo network � Univision’s chief rival for the attention of Spanish-speaking audiences in the United States. Televisa sued Telemundo in a Florida federal court, alleging tortious interference under Florida law. Telemundo moved to dismiss the claim, arguing that Mexican law, which does not recognize a cause of action for tortious interference, governed the dispute. The judge granted Telemundo summary judgment, finding that Mexican law applied. The 11th Circuit vacated, holding that the alleged tortious interference claim is governed by Florida law. While the defendants had held one meeting with the actor’s agent in Mexico, they held four such meetings with the actor or his representatives in Miami. The trial judge misapplied the controlling law. “It focused too much attention on the terms of the Televisa-Islas contract, and the expectations that the parties had with respect to this contract, minimizing the independent significance of Televisa’s tort claim against Telemundo. As a result, it accorded factors that could favor Mexico if this were, indeed, a conflict over contract law more weight than they deserved in this conflict involving tort law.” LEGAL PROFESSION Law firm acting as debt collector can be sued A law firm acting as a debt collector does not have litigation immunity from the provisions of the federal Fair Debt Collection Practices Act, the 4th U.S. Circuit Court of Appeals held on May 9. Sayyed v. Wolpoff & Abramson, No. 06-1458. Discover Bank retained the debt-collection law firm, Wolpoff & Abramson (W&A) of Rockville, Md., to sue Farid Sayyed in Maryland state court due to an unpaid bill from Sayyed’s Discover credit card. Sayyed sued the law firm in a Maryland federal court, alleging it had made false statements in court papers it filed on behalf of Discover and that those false statements violated the federal Fair Debt Collection Practices Act (FDCPA). The court granted W&A’s motion to dismiss, holding, among other things, that the law firm had “litigation immunity” or “a common law immunity from claims based on statements made in the course of judicial proceedings.” Reversing, the 4th Circuit held that there was no legal immunity from the FDCPA for the law firm’s alleged acts. Citing the U.S. Supreme Court’s 1989 opinion, U.S. v. Ron Pair Enters. Inc., the court said, “The FDCPA clearly defines the parties and activities it regulates. The Act applies to law firms that constitute debt collectors, even where their debt-collecting activity is litigation. W&A asks that we disregard the statutory text in order to imply some sort of common law litigation immunity. We decline to do so. Rather, ‘where, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.’ ” MEDIA LAW Employees can’t expect their e-mail to be private Electronic mail messages between a county prosecutor and a county employee sent on government computers were public records, subject to disclosure to a newspaper, the Idaho Supreme Court held on May 4. Cowles Publ’g Co. v. Kootenai County Bd. of County Comms., No. 32206. The prosecutor for Kootenai County, Idaho, William Douglas, and the manager of the Juvenile Education and Training Court, Marina Kalini, who reported to Douglas, exchanged hundreds of e-mail messages. When questions arose about the special court and the appropriateness of the relationship between Douglas and Kalini, the Spokane, Wash., Spokesman-Review, owned by Cowles Publishing Co., filed a Petition for Access to Public Records, which a trial court granted, holding that the e-mails were public records. Kalini appealed, arguing that the e-mails were not public records because they did not involve official business, but were instead personal communications. Kalini argued further that, even if the e-mails were public records, their disclosure would violate her constitutional right to privacy. Affirming, the Idaho Supreme Court rejected Kalini’s arguments and held that the e-mails were public records. Rejecting Kalini’s constitutional privacy argument, the court said, “Assuming arguendo that there is a constitutional right to privacy in these emails because the emails are highly personal and sensitive or detail intimate aspects of Kalani’s personal and private life, Kalini had no reasonable expectation of privacy in them.” TORTS Good Samaritan law not applicable to surgeons A surgeon who spontaneously helps a colleague with an emergency surgery is not immune from liability under the state Good Samaritan Act, the North Dakota Supreme Court held on May 8. Chamley v. Khokha, No. 20060261. Rosie Chamley had kidney stones removed by her urologist, Dr. Salem S. Shahin, at Mercy Medical Center in Williston, N.D. Following surgery, Chamley experienced extensive bleeding. Shahin performed a renal exploration to determine the cause of the bleeding. After determining that Chamley’s kidney needed to be removed, Shahin enlisted the aid of Dr. Inder V. Khokha, a Mercy Medical Center vascular surgeon who had been waiting in the doctors’ lounge to perform a surgery on his own patient. During the kidney removal, Chamley’s vena cava was damaged and had to be repaired by Khokha. Although the repair stopped Chamley’s internal bleeding, she died the following day. Her son, William Chamley, filed a wrongful death suit against Khokha. The trial court dismissed the suit with prejudice, holding that Khokha was a “Good Samaritan” as defined by N.D. Cent. Code � 32-03.1-02 and therefore immune from suit. The North Dakota Supreme Court reversed. The Good Samaritan statute provides that no person who renders emergency aid to others who are injured or ill may be held liable in a personal injury action for acts or omissions arising out of the situation. However, there is an exception to the rule under Section 32-03.1-04 for “[a]ny person rendering aid or assistance with an expectation of remuneration.” The court said that Khokha assisted in Chamley’s kidney-removal surgery with an expectation of remuneration because, as a salaried hospital employee, he expected compensation for his services. No immunity for breach of patients’ bill of rights An Ohio county sued for alleged violations of the state Nursing Home Patients’ Bill of Rights is not entitled to governmental immunity, the Ohio Supreme Court held on May 9. Cramer v. Auglaize Acres, No. 2005-1629. In January 2002, Frank Cramer, a 71-year-old resident of Auglaize Acres, an Auglaize County, Ohio-owned nursing home, fell while two nurse employees were helping him into bed using a lifting device. Cramer was taken to a hospital and diagnosed with a fractured femur. Following surgery to repair the break, Cramer died. His son sued the nursing home, the county and the two nurses, alleging negligence, falsification of medical records, intentional infliction of emotional distress and violations of the Ohio Nursing Home Patients’ Bill of Rights, Ohio Rev. Code Ann. � 3721.17(I)(1)2. The defendants sought summary judgment, claiming governmental immunity. A trial judge granted the motion in part and denied in part. Both sides appealed to an intermediate state appellate court, which affirmed summary judgment in part and denied in part. The court held that the trial judge should have granted summary judgment to the county on governmental immunity grounds. The Ohio Supreme Court reversed and remanded. The patients’ bill of rights statute establishes a list of rights for the safety, treatment, privacy and civil rights of nursing home patients. The court said that it had previously ruled that governmental immunity is annulled when government employees fail to report known or suspected child abuse. “A similar sentiment is true in this case. Like children, the elderly are vulnerable to abuse and neglect by others,” the court said. The bill of rights “specifically abrogates governmental immunity and grants a cause of action to residents” of unlicensed county nursing homes. Molester’s psychiatrist can’t be sued by victims A psychiatrist has no common law duty to warn future victims about a patient’s predilection for child molestation, the South Carolina Supreme Court ruled on May 7. Doe v. Marion, No. 26323. In 1985, a psychiatrist began treating Dr. Robert Francis Marion, a pediatrician, for his tendency toward child molestation. At the time, Marion was a partner in a pediatric physicians’ group. He was asked to leave due to complaints about sexual abuse and molestation. Marion set up a private practice where he treated and also sexually abused “John Doe” for several years, starting in 1999. Doe’s mother sued the psychiatrist, saying the doctor was negligent per se for not telling the appropriate authorities about Marion’s proclivities, as required by S.C. Code Ann. � 20-7-510. Doe’s mother also said the psychiatrist and the partners in the pediatric physicians’ group had a common law duty to warn Marion’s “reasonably foreseeable” future minor patients. The trial court granted the defendants’ motion to dismiss, and an intermediate appellate appeals court affirmed. The South Carolina Supreme Court affirmed. First, though Section 20-7-510 creates a duty for physicians to report likely child abuse or neglect, the statute does not create a private cause of action for negligence per se, as the statute is intended to protect the public, not an individual’s private right. Second, no common law duty exists for any of the defendants to warn possible future victims where there is no specific, overt threat made toward an identifiable victim.

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