AHLA's Speaking of Health Law

The Lighter Side of Health Law – July 2019

July 25, 2019 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – July 2019
Show Notes Transcript

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.

Speaker 1:

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 enjoy this month's edition, A depressing tale. Corey Ward and her young daughter were in the waiting room of a Jacksonville medical practice. Corey spotted a jar of tongue depressors, A sign above the jar said, please do not touch medical supplies. So naturally Corey reached in and touched a few, leaving them in the jar for use by unsuspecting medical personnel and patients. There's more. Corey's daughter reached in the jar, touched a depressor and not wanting to be outdone by her mom. Took the depressor out, licked it, and put it back in the jar. Was Corey upset with her daughter's depressor licking? No way. Corey thought it was cute and she memorialized the cuteness with a video of the incident and why keep such a precious moment to herself? She posted the video to her Snapchat account and lickity split. It was all over the internet before you could say tongue depressor and just in case anyone might think Corey didn't know any better, she began the video by focusing on the Please do not touch sign, and she added the message. Don't tell me how to live my life. Corey has been arrested for tampering with a consumer product without regard to possible death or bodily injury. It's trial strategy, not brain surgery. Laura Andrews has died while Dr. Bob Williams was trying to repair her brain aneurysm with Laura still on the operating table. Dr. Bob told her family that the catheter and tiny coil he was using were defective. When Laura's family sued Dr. Bob for malpractice, he filed a cross claim against the device manufacturer. It looked like a can't loose case for the family. Either Dr. Bob was negligent or the device was defective or both. In preparing for the trial, the family's lawyer concentrated on Dr. Bob's negligence. He didn't worry about making a case against the device manufacturer because Dr. Bob's team would take care of that good trial strategy, right? Well, it might have been except for one thing. At the last minute, Dr. Bob and the manufacturer reached an agreement and Dr. Bob withdrew his claim. The manufacturer was out of the case. Instead of two targets, the family was left with just one Dr. Bob, and as luck would have it, the jury found that Dr. Bob was not negligent. The family got nothing. The family's lawyer cried foul arguing that the family was entitled to a new trial with an opportunity to make a case against the manufacturer. Nonsense responded. The manufacturer's lawyer, you don't get a new trial just because you chose the wrong trial strategy. The case is Andrews versus Micro Vection, superior Court of Pennsylvania. You may be able to retire. Now here's a situation that's all too common these days. A lawyer in his forties jumps to a new firm. Things that the new firm don't go as well as either he or the new firm hoped. His supervisor criticizes his work, questions his legal ability, and talks about cutting his pay. He doesn't have as much work as he'd like and that gets him down. If this describes you or someone you know, you may want to take a look at what Ingo Schultz is doing. He was in precisely this situation.

Speaker 2:

He put up with it for about a year. Then he quit, not just from that firm, but from practicing law altogether, and he filed a claim for permanent disability. When his claim was denied, he filed in federal court where the suit is pending. INGOs theory. He's permanently disabled and can't ever practice law again. Why is that? Because he says he has PTs D and depression. What was the trauma? The T and p, TS D. Why? It was the criticism, the bullying by his supervisor. It was traumatic and the depression. Well, getting criticized and not having enough work is depressing. Q E D. So if your supervisor criticizes you and you're feeling down about it, keep an eye on INGO's case. If his theory is right, you may be able to retire and live on disability payments. The case is Schultz versus Metropolitan Life, Southern District New York. The fishy F M L A Leave request. This case should interest hospitals and other organizations with a high volume of family and medical leave ACT requests. Richard Deto took F M L A for foot surgery while on leave. He took his family on a two week vacation in Mexico. His fun and the son sojourn involved sailing, fishing and other activities not consistent with being unable to work in the IT department. He documented his activities photographically, including a shot of himself standing on a boat proudly holding the big fish he caught. When he got back to work, he requested another FMLA leave this time for knee surgery. That same day the employer learned about the vacation in Mexico. Decided that Richard had misrepresented his medical condition and fired him. Richard sued claiming he had been fired for exercising his FMLA rights. The employer responded that it had fired Richard because he lied about his medical condition. At the trial, the employer prominently displayed photos of Richard in Mexico boating and generally having a ball. So the employer won the case, right? Well, no. The employer lost and lost badly. Richard was awarded over$2 million including punitive damages and the award was upheld on appeal. How can that beat Because of the timing of the decision to fire Richard when the decision was made. The employer had never seen the photos and had no idea what activities Richard engaged in down in Mexico. So neither the photos nor Richard's activities could have played a part in the decision to fire him. The case is Deto versus Massachusetts Water Resources Authority, Massachusetts Supreme Judicial Court. Can you get battery acid reflux? Here's something you don't see every day. CMS cited a Connecticut hospital for failing to monitor a psychiatric patient at risk for self-harm. After the patient swallowed two batteries, the hospital was lucky not to be charged with battery by battery. Where did the patient get the batteries In? The headphones the nurse gave him. The batteries were small, aaa, but it took emergency surgery and a colonoscopy to remove them. Those procedures were performed at a different hospital. The patient had been at that second hospital five other times in as many months undergoing six surgeries and all this time, the surgeon filed a complaint with the Department

Speaker 3:

Of of Public Health. C M S placed the first hospital where the battery swallowing occurred on immediate jeopardy. The status was lifted five days later, no word on whether the nurse got her batteries backed. 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.