The Lighter Side of Health Law – April 2019

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments. Sponsored by Coker Group. 

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Transcript

Speaker 1: 0:01

Hi, I'm Norm Taber, host of the A H L A podcast series, the Lighter Side of Health Law, sponsored by Coker Group. I hope you enjoyed this month's edition. Progressing backwards. Generally progress is a good thing, but sometimes it comes at a price. In healthcare, nothing stands for progress more than the ehr, the electronic health record for a couple of decades now. The EHR has been synonymous with progress and improvement in the delivery of healthcare, so you may be surprised to see what stands as number one on the top 10. Patient safety concerns for 2019 as ranked by the prestigious Emergency Care Research Institute is number one, lack of an EHR system. No, it's the opposite. Number one is diagnostic stewardship and test result management using EHRs. That's right. Use of EHRs is the nation's number one patient safety concern. But on the bright side, the EHR has eliminated that notorious medical bugaboo, indecipherable physician handwriting, tough customer award. This month's tough customer award goes to the eighth Circuit court of appeals for its decision in a false claims case brought against a hospital by an EMT and two paramedics who worked there. The plaintiffs alleged that the hospital won required paramedics to perform breathing treatments previously provided by nurses. Two ordered paramedics to document all breathing treatments as lasting 30 minutes or longer. Three, admitted that these orders were made for billing and reimbursement purposes. Four, order that all lab services even blood draws be performed by paramedics or EMTs. Five submitted Medicare claims for a paramedic who wasn't properly licensed and six misclassified the titles of three employees named in the complaint. The eighth circuit affirmed dismissal of the case for failure to make allegations with sufficient particularity true. The complaint identified a specific patient who received unnecessary breathing treatment, but it didn't give the date and it didn't say whether the hospital ever submitted a claim for the treatment. What about the phony time sheets? Well, the court said they don't count because plaintiffs didn't quote explain how the time sheets were used to bill Medicare. In summary, the court concluded even if the plaintiff's allegations were true, they don't lead to a strong inference that claims were submitted. Maybe the hospital did everything the plaintiff's allege, but provided all the care for free. The case is US Xra Struby versus Crawford County Memorial eighth Circuit, but the malady lingers on Johns Hopkins four year experience with employee Rita Ranjan was pretty miserable, but the following five years of litigation were even worse. According to a fourth Circuit opinion, Rita's four year stent as Hopkins nurse practitioner was quote, volatile and unsatisfactory. Then when Hopkins suspended her, she resigned, claimed constructive discharge and filed four separate lawsuits against the system including wrongful termination, Medicare

Speaker 2: 2:58

Fraud, retaliatory firing, and discrimination based on race, national origin, age, and sex. All four. When one suit was dismissed, she didn't appeal. She merely filed another identical suit. True. She produced over 1600 documents in discovery, but her Hopkins email inbox contained nearly 9,000 emails, the vast majority of which she failed to deliver. Then there were Rita's after the fact efforts at Spruiking up her deposition transcript. Apparently unhappy with her own performance. Rita did the following. One submitted 51 pages of erota. Two claimed the court reporter intentionally altered her testimony to make her look bad. Three sent an ex parte eyes only letter to the judge arguing her case. And four, my personal favorite accused the court reporter of altering both the audio and video of her deposition to put different words in her mouth. After five long years of this, the district court dismissed all her cases, one for failure to prosecute and the others for flagrant and unremitting violations of the Federal Rules of civil procedure. In the process making the acute observation that Rita's quote, inexorable need to deflect responsibility and to project it on others sheds more light on her difficulties at Hopkins than the actual testimony in her deposition. The fourth circuit unanimously affirmed the case is Ranga. John versus Johns Hopkins will always need lawyers. One reason we'll always need lawyers is because even the simplest wording can be read in wildly different ways and it takes lawyers and judges to figure out the real meaning in any particular context. Here's an example. What does the phrase within 90 days mean? Brian Wall was treated at Georgetown Hospital in September, 2014, three years and two months later he filed a malpractice suit. The trial court dismissed the suit because the three year statute of limitations had expired. Two months earlier on appeal, Brian pointed to a provision requiring a plaintiff to give a defendant 90 days pre-suit. Notice that provision says that if notice is served within 90 days of the end of the three year limit, then the limit gets extended by 90 days. His argument was that the phrase within 90 days of the limit doesn't just mean 90 days before the limit. It also means 90 days after the limit. So he can give notice up to 90 days after the limit and still file suit. And the appellate court had to agree that literally within 90 days can be read that way 90 days before or 90 days after the three year limit. But the court nevertheless found against Brian ruling that when the entire statute is read holistically, there is no intention to allow the pre-suit notice to be filed after the three year statute. Brian was out of luck and you may not be surprised to hear that Brian, a non-lawyer, was representing himself. The case is WA versus MedStar, Georgetown, DC Court of Appeals Supreme Court sides with sturgeon against moose.

Speaker 3: 5:56

This isn't health law, but you'll be interested if you like the outdoors. The US Supreme Court has issued a unanimous opinion that's good for sturgeon, but bad for moose. How bad? In some cases, fatal. John Sturgeon liked to travel by hovercraft on a stretch of the nation river that lies inside the boundaries of the Yukon Charlie National Park Preserve in Alaska. One day Park Rangers pulled him over to tell him that a nationwide park service regulation made it illegal to operate a hovercraft on rivers within a national park. And the Nation River was within the Yukon Charlie National Park that did not sit well with Sturgeon. So he sued the Alaska Regional Director of the National Park Service who has the very Alaska appropriate name of Bert Frost. Sturgeon's argument was that the Nationwide Park service regulation wasn't quite nationwide because there was a special exemption for Alaska, which says that Alaska not the United States, owns the rivers inside its national parks. The federal district court ruled against Sturgeon and in favor of frost and the ninth Circuit. Affirmed unwanted sturgeon petitioned the US Supreme Court for Sir Chiari. The court granted the petition and in March unanimously reversed holding that the Nation River is in fact exempt from the general nationwide ban on operating hovercrafts within national parks. So Sturgeon one and Frost lost, but what's good for Sturgeon is bad for moose. Why? Because the reason Sturgeon operates as hovercraft on the Nation River is so he can get to the happy hunting ground to shoot. You guessed it, moose. That's why what's good for Sturgeon is bad for moose. The case is Sturgeon versus frost. Well, that's it for this month's edition of the Lighter Side of Health Law. I hope you enjoyed it. Check your A H L E Weekly and Connections Magazine for the next edition.