Category: Torts

Second Circuit Certifies Question to New York of Appeals on Unsettled Issue of Whether the New York Public Health Law Creates a Private Cause of Action

Case Name: Haar v. Nationwide Mutual Fire Ins. Co. – Second Circuit

Date of Opinion: March 13, 2019

Opinion by: Judge Katzmann, Judge Hall, and Judge Lynch (per curiam)

Summary:

In 2012 and 2013, Robert D. Haar (“Haar”), an orthopedic surgeon, provided treatment to several patients injured in car accidents for which Nationwide Mutual Fire Insurance Company (“Nationwide”) was the insurer. After treating these patients, Haar submitted the claims to Nationwide for payment of the medical treatment he provided. Nationwide denied one claim in full and denied three others in part. Nationwide based the full denial on a Peer Review Report which stated that there was no cause and effect relationship between the injuries treated and the alleged incident. For the other three claims, Nationwide based its decision on the applicable fee schedule, rather than any issue with the medical treatment provided. Nationwide then submitted a complaint to the New York State Office of Professional Medical Conduct (“OPMC”). On January 27, 2017, the OPMC notified Haar that it had concluded an investigation and would not take any disciplinary action.

Harr then initiated this suit under N.Y. Public Health Law section 230(11)(b) against Nationwide, alleging that Nationwide had submitted a bad faith report about him with the OPMC. On November 30, 2017 the United States District Court for the Southern District of New York dismissed Haar’s complaint, finding that the New York Court of Appeals, were it faced with the question, would find that the statute does not create a private right of action. Because the issue turns on a question of state law for which no controlling decisions of the New York Court of Appeals exist, and given a split in the Appellate Division, the Second Circuit certified this question to the Court of Appeals, pursuant to 22 N.Y.C.R.R. § 500.27 and 2d Cir. R. 27.2(a).

The Second Circuit stated that New York courts are to consider three factors when determining whether an implied private right of action exists under a statute: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme. The district court had held that the overall statutory scheme was not enacted for the benefit of individuals against whom reports were made but, rather, to create a scheme to regulate medical misconduct.

The Second Circuit noted that, in relation to the second factor, the Court of Appeals has articulated the purpose of section 230(11)(b) as encouraging complaints by individuals who would otherwise be reluctant to provide information regarding errant doctors for fear of litigation, and has written that the creation of an implied right of action would “chill such complaints.”  Nevertheless, the Second Circuit found that the Court of Appeals had not squarely ruled on the issue of whether a private right of action exists under the statute and New York’s Appellate Division has been split over this issue for over a decade.  Accordingly, although the parties did not request certification, the Second Circuit certified the dispositive question of law – does New York Public Health Law Section 230(11)(b) create a private cause of action for bad faith and malicious reporting to the Office of Professional Medical Conduct –  to the New York Court of Appeals.

Summary by: Caitlin Ens

To read the full opinion, please visit this link.