External Appeal in New York; Are Recent Changes Enough?

By Hunter Raines, Albany Government Law Review

New York’s external appeal legislation, giving patients and health care providers a right to an external appeal of health plan adverse coverage determinations, has been invaluable in improving the patient’s access to care while protecting the provider’s right to adequate reimbursement for health care services.  However, changes enacted in July 2011 measurably impact the operation of this statutory creature, which merits examination and review of the process as it currently stands.[1]

In the early 1990s, the rising costs of health care inspired a new insurance model closely tied to the concept of strict care management.[2]  By strictly managing consumer options, health care costs were constrained.[3]  However, this model encumbered access to needed health care for many.[4]  New York’s Managed Care Reform Act, signed by Governor Pataki in 1996, provided new protection for New York consumers in the health insurance market.[5]  Since the passage of the act, consumers now have the right to obtain a description of services and procedures covered by their health plan, the right to an explanation of the patient’s financial responsibility for such procedures and services and the right to appeal adverse coverage determinations.[6]  These legislative protections are far reaching, applying to most health plans excluding those which are self-funded or otherwise subject to ERISA, which is beyond the scope of this article.[7] Continue reading “External Appeal in New York; Are Recent Changes Enough?”

Medical Malpractice Cases: The Pros & Cons of a Cap on Non-Economic Damages

By Alicia M. Dodge, Albany Government Law Review Class of 2011

Introduction:                        

Is a $250,000.00 cap on non-economic damages in medical malpractice cases necessary?  The answer to this question will vary widely, depending whom you ask.  The New York State Bar Association and patient-rights advocacy groups strongly oppose this cap, while hospitals and physicians generally support it.[1]  The purpose of an economic damages award, such as loss of earnings, is to make an injured person “whole” again, and can generally be calculated with a fair amount of certainty.  On the other hand, an award of non-economic damages, such as pain and suffering or loss of consortium, “cannot be precisely measured in money,” and as such are often viewed as arbitrary rewards.[2]   Continue reading “Medical Malpractice Cases: The Pros & Cons of a Cap on Non-Economic Damages”

“New York’s Last, Best Hope for Real Reform”: The Case for Convening a State Constitutional Convention

By Brian M. Kolb, New York State Assembly Republican Leader

In the lead article of the inaugural issue of the Albany Government Law Review’s New York Legislation book, Assembly Republican Leader Brian Kolb convincingly advocates for a “People’s Constitutional Convention.”   Mr. Kolb, the Assembly Minority Leader, argues that, since the last convention in 1967, the fiscal, governmental and confidence crises are reasons not to wait until 2017, the next time the question of convening a convention will automatically appear on the ballot.

Mr. Kolb created an online petition to call for a convention: Reform New York.  To date, nearly 2,500 have signed, at least virtually, the petition to support a People’s Convention to Reform New York.

The term “reform” has reached remora-like status in Albany, attached to nearly anything, and in cases that may result in only marginal improvement.  As Mr. Kolb writes, the People’s convention is needed to address far-reaching, institutional change:

State government’s dysfunction, corruption, and fiscal irresponsibility are still the ultimate trump card that can mobilize public opinion and serve as an urgent call to action. As symptoms of these “cancers” on government continue to manifest themselves in the form of chronic unemployment, late state budgets, multi-billion dollar deficits and debt, some of the nation’s highest property, business, and income taxes, the “case” for convening a constitutional convention will be self-evident, extremely powerful, and, in my opinion, open and shut. The fact that state government still lacks a statewide succession plan for state offices, an independent Legislative Redistricting Commission, term limits for legislative leaders and legislators, initiative and referendum, . . . will continue inspiring calls for reforming the broken institution of state government.

Click here to view the article by Assembly Republican Leader Kolb.

Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals

Written by David Szalda, Albany Government Law Review Member

 

Introduction

On the morning of November 15, 2004, the quiet Albany suburb of Delmar, N.Y. awoke to the news of the murder and attempted murder of Peter and Joan Porco.[1] Sometime in the night, while the two were sleeping an intruder entered their home, and savagely attacked them with an ax.[2] Hours later, police investigators and paramedics arrived at the Porco residence to discover Mr. Porco murdered and Mrs. Porco in her bed barely surviving her traumatic head injuries.[3] Investigator Christopher Bowdish began asking questions of the attack.[4] Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband.[5] As Investigator Bowdish and the paramedics would later testify Mrs. Porco responded with an up-and-down ‘nod,’ signaling, yes.[6]

Relying on the ‘nod’ and an abundance of circumstantial evidence the jury convicted the victim’s son, Christopher Porco, for the murder of his father and the attempted murder of his mother.[7] Porco’s appeal to the Second Department was premised among several legal errors, most notably the trial court’s error in admitting the police detectives and paramedics testimony as to Mrs. Porco’s nod as an excited utterance.[8] Upon appeal, the Second Department disagreed, and found the nod inadmissible hearsay.  However, the court held that error harmless because since Mrs. Porco was ‘available’ to testify, Porco’s Sixth Amendment right to confrontation was not violated.[9] On September 21, 2010, the New York Court of Appeals granted Porco’s defense motion for leave to appeal the Second Department’s holdings.[10]

Continue reading “Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals”