Deal in Magee suit in trouble

By Walter F. Roche, Jr.
Published by the Pittsburgh Tribune-Review on November 20, 2008.

An agreement to settle the whistleblower lawsuit brought by a former Magee-Womens Hospital secretary has broken down.

Vicki Kuftic Horne, attorney for former secretary Donna Kovacs, said Wednesday the hospital and its parent, UPMC, are trying to impose conditions that are “not consistent with the facts of the case” or the agreement reached only a week ago.

Kuftic Horne said that she could not elaborate because the settlement is confidential. Common Pleas Judge Timothy P. O’Reilly dismissed a jury Nov. 12 after nearly two weeks of testimony in the case once lawyers reached the agreement.

“We have a settlement, and it is enforceable,” Kuftic Horne said, arguing that hospital officials were trying to retroactively change its terms.

UPMC spokesman Frank Raczkiewicz declined to comment.

A hearing on the motion to enforce the agreement is scheduled for Friday before Judge Gene Strassberger.

Kovacs sued the hospital on charges of wrongful termination and defamation after her dismissal in late 2004 on charges she improperly accessed and disclosed patient information.

Before the trial abruptly ended, several Magee administrators testified Kovacs was never allowed to see the records they said she improperly accessed.

While hospital officials said they took action against Kovacs because of their concern for patient privacy rights, UPMC attorneys filed a document in the case that included the names and treatment information of several patients.

UPMC acknowledged the disclosures violated the same federal law it accused Kovacs of violating.

In addition to the enforcement motion, Kuftic Horne filed noticed that she will depose UPMC chief counsel Robert J. Cindrich, counsel Mary K. Austin and Paul K. Vey, a private attorney who represented Magee.

Magee admits privacy breach in whistleblower filing

By Walter F. Roche, Jr.
Published by the Pittsburgh Tribune-Review on November 11, 2008.

Attorneys for Magee-Womens Hospital filed documents available on the Internet that included the names and confidential medical information of several patients, in what hospital officials called an inadvertent violation of federal law.

The filings were made in the case of a former secretary at the UPMC facility who was fired from her job on charges that she violated patient confidentiality when she accessed and printed patient records. Donna Kovacs sued, claiming the hospital wrongfully terminated her after she raised questions about patient care and recordkeeping.

Common Pleas Judge Timothy P. O’Leary on Monday issued an order calling for the immediate removal of the data from the open court file, as an Allegheny County jury began a second week of hearing testimony in the Kovacs case.

“As soon as we learned of this inadvertent disclosure in court filings, we asked the court to seal the records,” said UPMC spokesman Frank Raczkiewicz. “This was done promptly, and the records have been sealed, and the names and details are no longer available.”

Asked if the hospital acknowledged that the disclosure violated federal privacy law, Raczkiewicz said, “Yes.”

Under the federal Health Insurance Portability and Accountability Act, access to personal health data is strictly limited. The statute is enforced by the Office of Civil Rights in the Deaprtment of Health and Human Services.

Magee has charged that Kovacs violated that very same law.

The patient data were included within several hundred pages of documents filed by Magee’s lawyers. The filing was dated Nov. 6, but only became available to the public on a court Web site over the weekend.

The information included the names of at least four Magee patients. In one document, the Social Security number and date of birth for a patient was listed along with the tests she had undergone.

Other records include those of a patient whose pap smear record had been amended and corrected. In another disclosed case, the records shows that the specimen tested actually belonged to another patient.

In court yesterday, a Magee administrator, Candis Kinkus, acknowledged that she had testified under oath that she did not know the reason for Kovacs’ dismissal in late 2004. Nonetheless, she had signed a detailed affidavit in 2005 that was submitted to the state Health Department specifically charging Kovacs with improperly accessing patient records.

In her affidavit submitted to the state, Kinkus stated that Kovacs accessed data on “hundreds” of patients “without justification” and passed that date on to two pathologists, Kenneth S. McCarty and Susan A. Silver, who are suing Magee.

Kinkus said that when she was deposed in 2007 she did not recall being aware of the reasons for the dismissal.

“I did not recall that until I was shown that last week,” Kinkus said of her affidavit.

Kinkus, who is the administrative director of the Oakland hospital’s pathology department, acknowledged that she testified in 2007 that she had not participated in a state Health Department investigation into allegations about poor recordkeeping at Magee.

On the witness stand, Kinkus agreed that she not only signed and submitted the affidavit, but went to Harrisburg with Magee lawyers to be interviewed as part of that probe.

Kinkus also said a switch to the new computer system in 2001 led to the wrong names of pathologists being placed on pathology reports.

“There was a glitch in the conversion,” Kinkus said. Asked if that glitch could have affected some 500,000 patient records, Kinkus said she did not know the exact number.

“It may have been a half-million records, but it wasn’t a half million that were ever sent out,” Kinkus said, noting that only a fraction of those archived records were ever requested by physicians.

3 Ex-BNY Mellon Employees Win Arbitration Award

By Jen Zimmerman
Published by The Legal Intelligencer & PA Law Weekly on July 19, 2011.

v. BNY Mellon Capital Markets

Date of Verdict: June 14.
Court and Case No.: FINRA Case No. 10-02363.
Arbitrators: Roger W. Van Deusen, Charles B. Jarrett Jr., Timothy Shay Davis.
Type of Action: FINRA – Associated Persons v. Member.
Injuries: Wrongful discharge and defamation.
Plaintiffs’ Attorney: Vicki Kuftic Horne, Pittsburgh.
Plaintiffs’ Expert: David Kaplan, accounting.
Defense Counsel: Catherine S. Ryan, Reed Smith, Pittsburgh.

On Feb. 14, 2009, BNY MCM terminated the employment of [Client 1] and [Client 2] after the company asserted that the employees had engaged in misconduct, according to the respondents’ answer to the statement of claims. [Client 3] resigned in anticipation of termination.

Vicki Kuftic Horne, the claimants’ attorney, argued that the former employees, who were FINRA member firm registered representatives, had engaged in trading activities that BNY MCM had supervised and approved.

“BNY knew of [the claimants’ actions] and permitted them to undertake the trading activities in the ARS transactions,” Horne stated. However, “when market conditions resulted in the public and regulators questioning whether or not customers’ repurchase of their own ARS was appropriate,” BNY MCM became concerned, Horne said.


A FINRA arbitration panel composed of Roger W. Van Deusen, presiding chair; Charles B. Jarrett, Jr., public arbitrator; and Timothy shay Davis, a nonpublic arbitrator, heard the case.

On June 14, the Arbitrators determined that BNY MCM was liable. The panel members wrote that they had “found no basis for any discharge for cause, no basis for an allegation of non-compliance with State and Federal Securities Laws and Regulations, and no basis for negative and/or defamatory statement[s] concerning [the claimants’] conduct while employee[s] of BNY Mellon.”

The panel awarded [Client 1], [Client 2], and [Client 3] with $697,363.18, $432,264.96, and $379,981.36, respectively. The damages total just over $1.5 million and they are to be paid by BNY MCM.