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.
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.
Hi, I'm Noro Taber, host of the A H L A podcast series, the Lighter Side of Health Law, sponsored by Coker Group. I hope you enjoy this month's edition. Less there than Meets the Eye. One of my pet peeves is the scare headline. The headline that tells you something truly awful has happened, but then the story turns out to be less than truly awful, maybe not even awful at all. Recently, a respected health journal, one we all read carried this headline, medical errors affect 20% of Massachusetts residents. That got my attention. I read the article and then I read the report. It was based on what the report actually said is that when 5,000 people were randomly surveyed, about 1000 reported that they had experienced a medical error or that someone in their household had, or that a family member outside the household had first notice that the report, unlike the headline, didn't say that errors had actually occurred. It said respondents claimed that errors had occurred. Second, and this really steams me, the 5,000 respondents were asked to report on a universe that included themselves and members of their households and their family members outside the household. So if the average respondent lived with, say, three other people and had say, three close relatives outside the household, that's 35,000 people. 1000 out of 35,000 is nowhere near 20%. It's 2.85%. So the headline should have said something like Survey respondents claim medical errors affect under 3% of Massachusetts residents. But of course then I wouldn't have read the article. I ought to have my head examined. It's not uncommon for someone to say to an opponent, you oughta have your head examined. In this case though, the plaintiff said it about himself. In fact, he based his appeal on the fact that the trial court should have known he needed to have his head examined. Penobscot Community Hospital terminated dermatologist William Gallagher due to numerous complaints by staff and patients of rudeness and bullying. He sued for age discrimination, breach of contract in various torts. When the hospital moved for summary judgment, he filed a quote box of documents along with a memo containing no statements of fact or citations to evidence. The court ruled that all the hospital statements of fact should be deemed admitted, noting it's not the court's responsibility to sift through the box of documents to find issues of fact. The good doctor appealed arguing that the court should have known, based on his box of documents and other filings that he needed to have his head examined or a guardian appointed the main Supreme Court was not impressed. It unanimously affirmed the hospital's summary judgment, noting that while it's true that a party is entitled to reasonable accommodation, the party must ask for it, which this doctor had never done. You can't make this stuff up. The case is Gallagher versus Penobscot Community Healthcare Main, Supreme Court Poetic License and Legal Pleadings. This is a story about poetic license and legal pleadings. But before starting, I should issue this caution. Don't try this at home
Speaker 2:Or in the courtroom, Virginia Attorney Judith Cofield represented the plaintiff in a med mal suit against a hospital. She asked for access to her client's health records. The hospital agreed provided she pay a fee for access to its internal information portal. Judith didn't want to pay a fee and she found direct support for her position in the q and a discussion of HIPAA fees on an HHS website. The only problem was the q and a discussion was not legal authority. No problem. Judith apparently reasoned the Federal Register regulation on fees is legal authority. In my motion, I'll quote the regulation, which has four sub paragraphs, and I'll add my own fifth subparagraph with the q and a language. Whoever know it looks so good. She filed two more pleadings with her tacked on fifth subparagraph. As luck would have it, Judith had drawn a judge who reads the authorities that litigant sight. He couldn't for the life of him find a fifth subparagraph in the regulation. He asked for a written explanation. In response, Judith merely submitted a copy of the q and a page from the website. Nothing more. The judge unhappy with her, not only denied Judith's motion, but referred the matter to the Virginia Bar, which found her in violation of the Rules of professional conduct. She appealed to the Circuit Court, which unanimously found that she had made false statements to a tribunal. The State's Supreme Court unanimously affirmed and ordered that she be publicly admonished. The case is Cofield versus Virginia State Bar Virginia Supreme Court punishing the victim. You have to feel sorry for Marjorie Ashmore. According to the Connecticut Supreme Court, her marriage to Bill Ashmore wasn't particularly happy. Bill was a workaholic working late into the night, seven days a week, he spent his little free time in the garage. He didn't express his feelings to Marjorie or confide in her. In short, bill didn't do much to meet Marjorie's needs for romance and companionship. Why was the court measuring the quality of Marjorie's marriage? What did it matter if Bill wasn't much of a husband? Because after medical malpractice caused Bill's death, a jury awarded Marjorie four and a half million dollars for loss of consortium compared to a wrongful death award of only 1.2 million. The Supreme Court ruled that the law presumes that a loss of consortium award should not be substantially bigger than the wrongful death award. Overcoming the presumption requires showing that losing the love and affection of the deceased spouse was an unusually high hard blow. The problem for Marjorie was that when the court reviewed the evidence, her marriage didn't look all that rosy. It looked like losing Bill shouldn't be worth much more than the amount of the wrongful death award. Certainly not four times that amount. So it looks like putting up with a cold and distant husband for all those years will now cost Marjorie over$3 million. I call that punishing the victim. The case is Ashmore versus Hartford Hospital, Connecticut. Supreme Court casting call to play distraught. Patient must cry on cue. Could you play the role of a patient with a big out of network medical bill so distraught that you cry? If so, then according to a federal lawsuit filed by Aetna, there is, or at least there was a place for you at the Long Island Company Le Incorporated. According to Aetna, Leal hired people to call Aetna customer service pretending to be patients with big medical bills for out of network care, claiming the providers were going to send them to collection agencies and begging Aetna for help. And sometimes it worked. An Aetna rep would feel so bad for the so-called patient that Aetna would pay all or part of the out of network excess. Why would Leal Incorporated do this? Because according to Aetna's lawsuit, the out-of-network doctors who sent the bills paid LE to do it. Aetna sued Leal and its owner in Pennsylvania Federal court. What did the defendants have to say? Well, for one thing, they claimed they couldn't be sued in Pennsylvania. How were they supposed to know that? The Aetna 800 number they called was rooted to Pennsylvania. But as Aetna pointed out, some of the LEO callers pretended to be Pennsylvania patients and called Aetna lawyers at Pennsylvania phone numbers. The Pennsylvania Federal Court ruled jurisdiction was proper. The case is Aetna versus James Eastern District Pennsylvania. 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 A Weekly and Connections Magazine for the next edition.