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In a reversal of roles, one of New Jersey’s pre-eminent medical malpractice firms is being sued by a hospital. JFK Medical Center in Edison accuses Blume Goldfaden Berkowitz Donnelly Fried & Forte of improperly obtaining records of Pap smears done by the hospital. Although a trial judge dismissed the suit against the Chatham firm, the hospital is pushing forward on appeal, insisting it has a fiduciary duty to protect the records and a responsibility under the federal Health Insurance Portability and Accountability Act to mitigate any harm resulting from improper disclosure. JFK says it fears that records of as many as 9,253 women could have been exposed. Blume Goldfaden contends that JFK’s suit was filed to divert attention from the hospital’s misreading of more than 100 Pap smears and to intimidate and harass the firm because it represents plaintiffs in suits against JFK. Two bar groups have rallied to Blume Goldfaden’s side, saying that Community Hospital Group v. Blume Goldfaden, which the Appellate Division heard argued on Sept. 27, raises issues about lawyers’ duties under HIPAA and the bounds of attorney-client privilege. One of the amici is the Association of Trial Lawyers of America-NJ, the plaintiffs’ bar group that is a frequent friend of the court. The other is the Trial Attorneys of New Jersey, which includes many defense lawyers and has appeared as amicus only twice in its 40-year history. TANJ’s brief calls the suit “a serious and unwarranted attack on the jury trial system,” in which baseless accusations are being used “to deter otherwise meritorious litigation.” Edwin Matthews, arguing for TANJ, told the appeals panel that if it finds JFK has a private right of action under HIPAA, “virtually any New Jersey lawyer who practices personal injury runs the risk of being sued by the HIPAA police for violating HIPAA.” Abbott Brown, representing ATLA-NJ, urged the appeals court to reverse the denial of fees to send a message that the courts will not tolerate abusive conduct like JFK’s. “If they had picked a fight with a smaller firm, it would have been steamrollered,” he told the panel. “Fortunately, they picked a fight with Blume Goldfaden.” OUTSIDE LAB HAD RECORDS The dispute began in 2003 when JFK realized it had misread three years of Pap smears for D.B., resulting in a third-year delay in diagnosing her cervical cancer. D.B. hired Blume Goldfaden partner Carol Forte to sue JFK. That suit, D.B. v. Palermo, MID-L-8396-03, is pending. Concerned over what happened with D.B.’s samples, JFK sent 9,253 slides — every Pap smear done for three years starting in 2000 — to an outside laboratory for an independent review. The review uncovered 107 other “discrepancies,” or false negatives. In late November 2003, two women whose tests were misread, referred to as H.D. and N.B., received identical letters from Forte stating she was investigating D.B.’s claim against JFK for misreading samples. The letter went on to say that “it has come to my attention that you may have information about the competency of the pathology department.” It asked them to “please contact me to discuss the information you may have.” H.D. and N.B. — upset that their private medical information had fallen into the hands of a law firm without their consent — told JFK they wanted answers. JFK claims it did a thorough internal investigation but was unable to discern how Blume Goldfaden obtained the names, sent from the outside lab in an encoded report. On Feb. 13, 2004, Thomas Cunniff of Fox Rothschild in Princeton phoned Forte with an ultimatum from JFK: Tell us what you have, how you got it and who you have told about it; agree to return it and not to use or disclose it; and indemnify JFK and hold it harmless for any claims over the incident. Forte told Cunniff she had not disclosed the information to third parties and that she would stop using it but would not agree to the rest. Later that day, the hospital went to court, seeking injunctive and declaratory relief. JFK also got Middlesex County Superior Court Judge Mathias Rodriguez to sign an order to show cause with temporary restraints barring Blume Goldfaden from disclosing the information. On April 2, 2004, Superior Court Judge Travis Francis dismissed the suit, finding the hospital lacked standing to assert privacy claims on behalf of third parties and that HIPAA creates no private right of action. He ruled that only H.D. and N.B. could sue over the disclosure of their medical records and that the hospital “cannot attempt to use HIPAA as an offensive weapon against possible malpractice suits.” But Francis denied Blume Goldfaden’s request for fees against JFK for filing a frivolous suit, and both sides appealed. CHARGING BARRATRY On July 19, 2004, JFK lawyer Jeffrey Pollock, of Fox Rothschild, filed a second litigation for similar relief on behalf of the two women, H.D. and N.B. v. Blume Goldfaden, with JFK footing the bill. Blume Goldfaden responded with a third-party complaint against JFK for barratry — filing lawsuits for purposes of harassment — and moved to disqualify Fox Rothschild for conflicts of interest. Francis granted the disqualification motion last Dec. 1, finding that even though H.D. and N.B. consented to the dual representation after obtaining independent legal advice, at JFK’s expense, they had potential claims against JFK — the express reason JFK had asked Blume Goldfaden to indemnify it. Francis also found that if Pollock were to represent H.D. and N.B., he would be privy to information that could make it easier to defend a later malpractice claim against JFK. In addition, the retainer agreement limited the time for H.D. and N.B. to sue JFK. Stephen Traflet, of Morristown’s Traflet & Fabian, took over the H.D. suit from Pollock. Depositions subsequently taken in the case showed that JFK notified gynecologist Lawrence Seitzman of misread Pap smears for three of his patients, H.D., N.B. and Patient A. Seitzman met with Patient A and gave her a copy of the letter. The next day, she consulted Robert Goodman, of Palmisano & Goodman in Woodbridge, who sent the letter to Blume Goldfaden for a possible referral. Forte and Goodman, who were deposed over their objections of privilege, testified to the transmission of the letter. Based on those facts, Francis granted summary judgment on Aug. 19, dismissing the case. He rejected Traflet’s argument that the facts still made out a claim for invasion of privacy, holding that Forte’s inquiry into “information about the competency of the pathology department” would not be “highly offensive to a reasonable adult.” He also dismissed the third-party complaint. Cynthia Craig of Blume Goldfaden, who represents the firm and Forte, sought to supplement the record in the Community Hospital (JFK) appeal but the appeals court denied her motion on Sept. 13, “without prejudice to the positions being advanced at oral argument.” ‘NOTHING BUT VENDETTA’ During the Appellate Division argument, Judges Donald Coburn, Donald Collester Jr. and Joseph Lisa allowed Craig to discuss Travis’ ruling in H.D., while reminding her it was not part of the record. Craig argued that a competent investigation by JFK would have uncovered what happened and that JFK’s continued pursuit of the firm constitutes harassment. Pollock told the appeals court that JFK had fiscal and fiduciary reasons to sue, based on a legitimate fear that a large number of test results might have been exposed. Pap smears are sensitive by definition and JFK did not want “to have to apologize later” for not acting if it turned out that other women’s records had been compromised, Pollock asserted. In a post-hearing interview, Pollock said the core issue is whether a hospital can protect its own business records and its patients’ privacy interests. If the appeals court affirms, hospitals would be left without guidance on the issue, he says. He adds that he does not know whether he would seek review by the Supreme Court. Forte declines comment but Craig calls the litigation “nothing but a vendetta,” noting that Blume Goldfaden has six cases now pending against JFK. Traflet, who has appealed the dismissal in H.D., did not return calls for comment. Patient A never sued JFK. Goodman, citing attorney-client privilege, declines comment, except to say of the case, “it’s sad that it’s gone to this extent.”

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