Med Law Blog : Pennsylvania Health Care Lawyers & Attorneys : Tucker Arensberg Law Firm : Employee Benefits, HIPAA & HIT in Pittsburgh, PA

Issues arise when one re-publishes material created by others -- i.e., another's intellectual property. Generally, the intellectual property involves copyrights and trademarks/servicemarks. Text, images, and sounds on a web page may be copyrighted. Trademarks and servicemarks which are commercial identifiers for a particular company's product or service are proprietary to that company. Both copyrighted and trademarked material must be used and referenced appropriately.

Is hyperlinking to another site permissible?

Yes. One can hyperlink to another site and even display the web address (also known as the Uniform Resource Locator ("URL")). See, e.g., Ticketmaster Corp. v. Tickets.com, 2003 U.S. Dist. LEXIS 6483 (C.D. Cal. 2003) ("A Uniform Resource Locator (URL) is simply an address, open to the public, like the street address of a building, which, if known, can enable the user to reach the building. There is nothing sufficiently original to make the URL a copyrightable item, especially the way it is used."), aff'd by Ticketmaster Corp. v. Tickets.com, 2005 U.S. App. LEXIS 6227 (9^th Cir. 2005).

Can I copy relevant portions of a web page?

Yes, short quotations are generally permitted as "fair use" under copyright law. Fair use means that one need not permission from the copyright owner of the material. (In contrast, however, one should obtain permission from the copyright owner if one wants to replicate an entire web page or a substantial portion of it.)

Can I use the facts and ideas from another web page?

Yes. One is free to disseminate facts and ideas gathered from another web page. Copyright only extends to original expression, but not facts and ideas.

Can I use images from another web page?

One can copy images from another web page if it is done for the purpose of comment, criticism, or some other "transformative" (i.e., productive) use. The use of smaller versions of images would point more towards fair use. However, if the use of the images is not necessary, then it is best not to do so.

Can I reference another's trademark or servicemark?

Yes. Reference the mark so that it is emphasized such as by underlining, italicizing, bolding, capitalizing, and/or putting the mark in quotation marks along with the appropriate SM (for an unregistered servicemark or a state-registered servicemark), TM (for an unregistered trademark or a state-registered trademark), or ® symbol (for a federally registered servicemark or trademark). Use the mark as an adjective followed by the generic name of the products/services associated with the mark. Do not use the mark in a plural or possessive form. Do not use the mark as a verb. See, e.g., Example

Is it permissible to post other's comments to one's blog?

In all likelihood, a person who posts a comment to a blog is granting an implied license to publicly display the comment to the blog (unless, of course, that person requests that such a comment not be published).

What is considered "fair use" under copyright law?

"Fair use" is not a litmus test. However, there are four factors that courts generally consider when determining if the challenged use is "fair use":

1) The purpose and character of the use.

• Transformative uses are favored over mere copying.
  • E.g., comment, criticism, news reporting, etc.
• Non-commercial use is favored over commercial use.

2) The nature of the copyrighted work.

• Use of fictional material is favored over non-fictional material (however, please keep in mind that facts and ideas are not copyrightable subject matter -- therefore, if one wants to paraphrase, this is not be a copyright violation).
• Use of published material is much favored over unpublished material.

3) The amount and substantiality of the portion used.

• Copying large portions or the entire work or the heart of the work (i.e., the most memorable portion of the work) is not favored.
• Using short quotations/excerpts is favored.

4) The effect on the market or the potential market.

• If the challenged use substitutes for the market of the original work or if it diminishes the market or potential market of the work, then the use is not favored.
  
  Lee Kim
  412-594-3915
  lkim@tuckerlaw.com

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Highmark Blue Cross/Blue Shield announced in the April 2008 PRN that the reduction for technical component reimbursement for multiple procedures, originally intended to be effective as of July 1, 2008, will be postponed until September 1, 2008.  A copy of that announcement is contained in the link below.

www.medlawblog.com/PRN Article.pdf

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Innovative Application of Section 1981 and Medical Staff By Laws as Contracts

Ennix v. Stanton (and Alta Bates Summit Medical Center) significantly broaden the use of 42 U.S.C. §1981 in credentialing cases. In this United States District Court case for the Northern District of California, the court denies the hospital's motion for summary judgment, holding that Dr. Ennix, an African-American cardiac surgeon has satisfied the burden of pleading his contract and discrimination actions against Alta Bates Summit Medical Center. 

Medical Staff By Laws as Contracts:

Establishing a contract based upon the medical staff by laws is already an uphill fight in California. California state courts have already ruled, in O-Byrne v. Santa Monica, that the medical staff by laws do not themselves constitute a contract. However, the court ruled that Dr. Ennix has sufficiently pled that the medical staff by laws and credentialing process created a contract between the hospital and Dr. Ennix over and above the medical staff by laws themselves. The court stated that this was enough to defeat the hospital's motion for summary judgment. 

Section 1981 Discrimination:

Section 1981 provides that all persons shall have the same right to make and enforce contracts. Dr. Ennix has alleged racial discrimination based upon the contract claim. The District Court applied the McDonnell Douglas test, concluding that Dr. Ennix satisfied the initial burden of establishing a prima facie case of racial discrimination. The burden then shifted to the hospital to prove it had a legitimate non-discriminatory reason for the adverse action, in support of which the hospital asserted the decisions of the peer review committees regarding substandard care provided by Dr. Ennix. The court assumed this was sufficient to shift the burden back to Dr. Ennix to prove these allegations were a mere pretext. The court then concluded that Dr. Ennix had offered sufficient evidence regarding the disparate treatment of Dr. Ennix in the peer review process to establish genuine issues of material fact. 

The inclusion of the 1981 cause of action avoids the immunity provisions of HCQIA.

A copy of the opinion is attached.

http://op.bna.com/hl.nsf/r?Open=psts-7ecphz

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Everyone has heard of the term "trade secret" but what exactly is it? This article provides an overview of trade secrets law in Pennsylvania.

1.         What kind of information is considered a "trade secret"?

In 2004, Pennsylvania adopted the Uniform Trade Secret Act ("UTSA"). The Pennsylvania statute now defines a "trade secret" as follows: "[i]nformation, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

In other words, a "trade secret" is confidential, proprietary information which is not publicly known or otherwise discoverable (e.g., reverse engineered). The information must provide a potential or actual economic advantage over one's competitors. To safeguard the trade secret, the company should have policies or procedures in place to vigorously safeguard the confidential nature of the trade secret. If the trade secret is ever publicly disclosed (whether intentionally or unintentionally), the information would no longer proprietary to the company. Employees have an implied, contractual duty to keep such information confidential under Pennsylvania common law. 

            A.        Examples of Trade Secrets

A non-exhaustive list of trade secrets include business or marketing plans, chemical or pricing formulas, software, design or manufacturing processes, and customer lists. Classic examples of trade secrets include the secret formula for Coca-Cola® or Colonel Sander's secret recipe of eleven herbs and spices for Kentucky Fried Chicken®. Inventions may be trade secrets, but they must not be patented since issued patents are accessible to the public.

2.         How are trade secrets lost or stolen?

            A.        Loss of Trade Secret Protection

Trade secret protection is lost once the proprietary information becomes public. For example, if a patent application is published, the invention is no longer a trade secret since the information is now public. Further, even if a patent application is not published while it is pending with the patent office, it will become published once granted and so the trade secret is therefore "lost."

Trade secret protection may also be lost if one is disclosing proprietary information to a third party in the absence of a confidentiality agreement.

Trade secret protection may be lost if the company does not vigorously enforce trade secret policies to keep the confidential, proprietary information a secret.

            B.        Theft of Trade Secrets

Trade secrets are stolen when an unauthorized third party unlawfully acquires the trade secret information or when an authorized party (e.g., an employee or contractor) discloses the information to an unauthorized third party (e.g., a competitor). 

The following are examples of how trade secrets can be stolen:

• unauthorized disclosure by a trusted employee (e.g., manager, engineer, scientist, etc.) or other trusted individual (e.g., contractor) who is currently with or has left the employment of the company;
• unauthorized disclosure by suppliers, consultants, financial advisors or others who entered into non-disclosure (i.e., confidentiality) agreements with the company;
• unauthorized disclosure by any person owing an implied duty to the company not to make such a disclosure (e.g., directors, corporate officers, high-level employees); and
• industrial espionage.

3.         How are Trade Secrets Enforced?

One can sue for trade secret misappropriation (i.e., theft) if an unauthorized disclosure of trade secret information has occurred. The remedies for such a suit include an order of the court in the form of an injunction which requires those who are in unlawful possession of the trade secret information to refrain from using it or disclosing it to others so as to prevent the trade secret information from being public (and thus the loss of the trade secret protection). The court may also award the company monetary damages to compensate for any economic loss suffered as a result of the trade secrets theft. Criminal penalties may also apply for theft of trade secrets.

4.         Can Trade Secrets be Sold?

Yes. Trade secrets are a form of intellectual property (i.e., proprietary information) and thus may be sold as intangible assets, just as patents, trademarks, and business goodwill may be transferred with the name of a company.

Conclusion

Adequate and effective use and management of trade secret information is necessary to help maintain the competitive edge. Establishing and maintaining best trade secret practices as part of one's global business strategy is a necessity. Vigorously protecting intangible assets such as trade secrets gives companies a competitive edge in an information-driven world where the intangible assets increasingly outweigh the tangible assets. 

Lee Kim
412-594-3915
lkim@tuckerlaw.com

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On May 2, 2008 CMS issued a policy update regarding services provided incident to the services of a physician/non physician practitioner. The purpose of the publication was to clarify policies related to Part B Services provided incident to the services of physicians. The publication clarifies common incident to issues such as the documentation required to authorize the incident to service, the supervision requirements for incident to services and the documentation requirements regarding the professional title of the person providing the service. Additional information regarding the policy update is available at http://www.cms.hhs.gov/Transmittals/downloads/R87BP.pdf.

Paul Welk
412-594-5536
pwelk@tuckerlaw.com

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The Kadlec case is the latest in the trend to find hospitals and physicians liable for "negligent credentialing." The theory is that hospitals are responsible if they allow incompetent physicians to operate on patients at their facilities. This first phase of negligent credentialing has been on the books for almost twenty years.

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The April 30, 2008 Press Release, Executive Summary and 2007 Annual Report are available at the link below.

 http://www.psa.state.pa.us/psa/lib/psa/annual_reports/annual_report_pr_2007_043008.pdf

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Bipolar Physician Has ADA Standing to Sue for Medical Staff Privileges

In Haas v. Wyoming Valley Healthcare System, the U.S. District Court for the Middle District of Pennsylvania concluded that a physician had standing under Title III of the Americans with Disabilities Act (ADA) and Section 5.04 of the Rehabilitation Act concluded that an independent contractor physician had standing to sue for denial of medical staff privileges, but also concluded that the physician did not satisfy the "otherwise qualified" conditions for protection. 

In an interesting twist, the Trial Court rejected the jury decision awarding Dr. Haas $250,000.00, entered judgment as a matter of law on behalf of the hospital, and denied the physician's motion for attorney's fees based upon the jury verdict as moot.

Facts:

Dr. Haas was diagnosed with bipolar disorder in 1994 during his residency. He underwent treatment, completed his training, and obtained privileges at Wyoming Valley Health System in 2000. Dr. Haas suffered an episode during surgery in 2001 which resulted in his taking a leave of absence and seeking additional treatment. Dr. Haas applied for reinstatement, which application was granted by the hospital on the condition that Dr. Haas essentially utilize a "co-surgeon" during his operations. Dr. Haas' request that this condition be eliminated was rejected and he filed suit against he hospital. The text of the opinion appears below.

Analysis:

There are two basic legal issues, i.e. whether Dr. Haas had standing as an independent contractor to seek protection under the ADA and the Rehabilitation Act and whether Dr. Haas satisfied the conditions of those statutes.

The court concluded that Title III of the ADA and Section 5.04 of the Rehabilitation Act applied to individuals, regardless of their employee or independent contractor status, unlike Title I of the ADA which applies to employment situations.

Granting standing, the court then analyzed whether Dr. Haas was entitled to the benefits of these public accommodations because his disability could be reasonably accommodated. The court agreed with the hospital that the only reasonable accommodation would be that imposed by the hospital, i.e. a orthopedic co-surgeon to oversee and assume responsibility of the case in the event of any problem. Otherwise, the court agreed with the hospital that Dr. Haas posed a direct threat to patient care. 

Therefore, the court concluded that it was not discriminatory treatment to require Dr. Haas to satisfy the additional conditions of his appointment, which Dr. Haas was unable to do. 

http://op.bna.com/hl.nsf/id/psts-7djm83/$File/haas.pdf

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Prior to legislation adopted in 2001, the Pennsylvania State Board of Physical Therapy regulated athletic trainers. Under Acts 92 and 93, the regulations promulgated pursuant to the Pennsylvania Physical Therapy Practice Act were to continue to govern the activities of athletic trainers until the State Boards of Medicine and Osteopathic Medicine adopted Final-Form Regulations. These Final-Form Regulations were adopted July 14, 2007 and are available at http://www.pabulletin.com/secure/data/vol37/37-28/1232.html Thereafter, the regulations of the State Board of Physical Therapy governing athletic trainers were rescinded effective April 19, 2008. The order rescinding the regulations is available at http://www.pabulletin.com/secure/data/vol38/38-16/727.html   

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