AHLA's Speaking of Health Law

The Lighter Side of Health Law – September 2019

September 26, 2019 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – September 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 with this month's edition of the Lighter Side of Health Law, brought to you by Coer Group, a national healthcare advisory firm working with hospitals and physician groups to develop customized solutions in five main service areas, strategy, operations, finance, technology, and compliance. The Coer Group mission is to customize an approach for each client that ensures strategic differentiation in the marketplace and the achievement of every goal across all performance areas. Through principled professional consulting, Coca Group assists healthcare providers in their pursuit of a sound business model and and enhanced patient experience. Coca group's advisors have the experience and creativity to find the right solution for any market and healthcare entity, how to turn gold into lead. When Elena Kekova filed suit against Northwestern Hospital for invasion of privacy, it looked like a surefire can't lose case. After all, the hospital could not deny that one of its doctors had taken photos of Elena while she was in the hospital, hooked up to an IV and then posted them on social media with a caption revealing that she was being treated for alcohol intoxication. But when the case was over, Elena was left with nothing less than nothing. In fact, considering she has to pay the hospital's attorney's fees and her lawyer in this can't lose case, he's been suspended from practice because of his tactics. How could things go so bad so fast for Elena and her lawyer? Because it turns out that while she was alleging that the hospital was invading her privacy, she confirmed to the doctor the one who took the photos and posted them that she had consented to his actions. She even wrote letters on his behalf to medical licensing boards confirming her consent. Meantime, she and her lawyer continued to maintain in the suit against the hospital that she had not consented. Then when the court ordered the unsealing of a record that would confirm Elena's consent, her lawyer instructed the clerk not to give it to the hospital's lawyers keeping them in the dark about Elena's consent. So Elena's case was thrown out. She was ordered to pay the hospital's attorney's fees, and her lawyer was suspended. Who says health law is boring? The case is Cherna Cova versus Papa and Northwestern Hospital Appellate Court of Illinois. The unanswered question. Recently, it was reported that the Department of Justice has indicted a security director of a 400 bed Georgia Hospital for theft. It seems that over a two year period, he ordered 93 guns each time submitting an invoice to the hospital, which it paid. But when the guns arrived, instead of turning them over to the hospital, he sold them and kept the proceeds. My question is, why did a 400 bed hospital approve invoices for 93 guns in the first place? What could they possibly do with 93 guns? Where were they even have kept them? I guess we'll never know. Fighting fire with fire cardiologist Sherman Sorensen employed another cardiologist, Gerald Poff for a few months in 2011, shortly after the relationship ended, Poff filed a whistleblower case alleging that Sorensen violated the false Claims Act by overbilling and performing unnecessary

Speaker 2:

Procedures. Poff and his lawyers seem to know the names and medical histories of all sorensen's patients. What's more? They sent letters to the patients soliciting med mal cases. Dr. Sorensen filed a denial in the false claims case, but he didn't stop there. He figured that the only way Poff could know the names and medical histories of all those patients was by stealing hard drives from the Sorenson practice. If you've seen Tom Cruise in the firm, you know that theft plus mailing letters equals you guys racketeering. Apparently, Dr. Sorenson saw the firm. He filed a RICO case against not only Dr. Poff, but also POV's lawyers. Ouch. I hate it when the lawyers get sued. The trial court dismissed the RICO case saying that the letters to patients were not fraudulent and the stolen hard drives weren't worth the$5,000 minimum required by the Ricoh statute. But the 10th Circuit reversed the dismissal ruling that A, the Ricoh statute does not require that the letters themselves be fraudulent only that they be incident two of fraudulent scheme, and B, when you include the intangible value of the information on the hard drives, the$5,000 threshold is easily met. So Dr. Sorensen's Rico case can proceed just as Dr. POV's false claims case has proceeded for eight long years. The case is Sorensen versus POV 10th circuit, slapping back at disgruntled physicians. A lot of states have antis SLAPP statutes SLAP with two PS is an acronym for Strategic Lawsuit against Public Policy. A SLAP is a lawsuit designed to intimidate or punish defendants for exercising their constitutional free speech rights. An example would be a developer filing a defamation case against someone for opposing a development plan. In 2017, the California Court of Appeals expressly held that hospitals and peer review committees could not invoke the antis SLAP statute when a physician sued them for peer review actions. But now the California Supreme Court has expressly disapproved that decision in a case upholding an employer's right to invoke the statute against an employee alleging discriminatory firing. That means that California hospitals and peer review committees can breathe a little easier, knowing that if a disgruntled physician slaps them, they can slap right back. The case is Wilson versus cnn, California Supreme Court from I am a jerk to I was an idiot. Martin SRE is back in the news. Remember him? He's the pharma CEO who famously raised the price of an AIDS drug by over 5000% back in 2015, and consequently received about as much bad press as any one person can receive. Then when he was indicted for securities fraud, he asserted the I am a jerk defense, arguing that he was targeted by law enforcement not for violating the law, but for being a jerk. Apparently the jury felt that being a jerk was not a good defense. Martin is in prison, but he is also back in federal court at this time as plaintiff suing another man for fraud. It seems that several years ago, Srey signed a$250,000 promissory note in favor of the man's father. Srey never paid the debt,

Speaker 3:

So the father sued and got a judgment for the principle and interest. Now, Srey has sued the man's son for fraud. What was the fraud? Well, the son advised srey that he should sign the note because it was quote, the right thing to do. How is that fraud? Well, Srey now says it wasn't the right thing to do. It was a stupid thing to do. Then why did he do it? Because the son told him to, and besides the son was 18 years older than Srey. So he looked up to him. We'll have to wait to see whether SREs knew I was an idiot. Defense is any more successful than his old. I am a jerk defense. The case is Srey versus Yaffe, Eastern District of New York, A lesson in crisis mismanagement. Paul McLaughlin is a physician in Mount Sterling, Kentucky. His wife NDA operates a clinic called Location vaccination under Paul's medical license, neither for Sheda nor anyone else in the clinic is a licensed healthcare provider. After the clinic provided flu shots in 2018, recipients began calling to complain of adverse reactions, redness, pain, and hard lumps at the injection site, and not just a few patients, but patients from a three state area. Fenda was concerned enough to call the CDC for guidance, but not concerned enough to follow the C'S directions, which were to a report the matter to the Kentucky Adverse Event Reporting System, and B, have the syringes tested at the local county or state health department. But Fnda did not sit idly by. She told the sufferers they needed an antibiotic and she very helpfully wrote the prescriptions herself. But wait, didn't I just say Fnda has no license? No problem. She simply signed Dr. Paul's name to the prescriptions. Not surprisingly, the matter came to the attention of the Kentucky Department of Public Health, which decided that the cause of the outbreak was contamination in the storage and handling a vaccine at location vaccination. When the medical licensing board got wind of the situation, they called Dr. Paul in. Did you know about the outbreak? The board asked Dr. Paul. Sure. He responded. I had the adverse reaction myself. No big deal. I cured it with an antibiotic. The board found Dr. Paul guilty of delegating his medical responsibilities to an unlicensed medical professional and contributing to a public health crisis. His license was made probationary for five years, and he was fined$5,000 and ordered to pay the board's costs. Well, that's it for this month's edition of the Lighter Set of Health Law. I hope you enjoyed it. Check your A H L A Weekly and Connections Magazine for the next edition.