AHLA's Speaking of Health Law

The Lighter Side of Health Law – November 2019

November 19, 2019 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – November 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 TAVR with this month's edition of the Lighter Side of Health Law, brought to you by Coco Group, a national healthcare advisory firm working with hospitals and physician groups to develop customized solutions that ensure strategic differentiation in the marketplace and the achievement of goals. Through principled professional consulting, Coco Group assists healthcare providers in their pursuit of a sound business model and an enhanced patient experience. Medicare Multitasker Hall of Fame. The newest inductee into the Medicare Multitasker Hall of Fame is New York surgeon David Samati. The induction follows the federal government's formal recognition of Sam's formidable multitasking in the surgical suite. According to Dr. Samati and Lennox Cell Hospital, he was so adept at multitasking that he could be in two places at once. Literally, he could perform two surgeries simultaneously, one endoscopic and the other robotic each in a separate or This significant multitasking feat was documented by the Medicare bills submitted by Dr. Samati and his hospital. The federal recognition came in the form of a 12.3 million fine to settle fraudulent Medicare billing charges. The case is US Xra Markson versus Samati Southern District New York too. Good to be true. A recent Indiana case involved the kind of juror every medical malpractice defendant dreams about the estate of K piles. I love that name. Pseudo physician for medical malpractice. During voir di, a prospective juror said he'd be glad to sit on a jury to determine whether the doctor had committed malpractice, but he would not participate in calculating damages. And he said it over and over, I won't be involved in deciding damages faced with his dream come true. Juror for the defense. The plaintiff's lawyer moved to strike for cause. The court denied the motion ruling that refusal to decide damages did not constitute prejudice. So the plaintiff's lawyer had to use her last Preemptory challenge to excuse that juror, which meant she couldn't challenge another juror she wanted to strike. When the jury came in with a verdict of no liability, the plaintiff appealed. The Court of Appeals unanimously reversed ruling that of course, Mr. No damages was prejudiced against the plaintiff. He was prejudiced against all plaintiffs seeking non-economic damages, and K'S estate was squarely within that class. The moral of the case is if a juror seems too good to be true for one side, he probably is. The case is Clark versus Matar, Indiana. Court of Appeals Wisdom from my dad as I was leaving the farm to go east to college many years ago, dad gave me a piece of advice that has proved true time and again, he said, remember, even the best idea will eventually degenerate into hard work. Another of dad's favorite sayings came to mind last month when I read about a survey conducted by the Journal Medical Economics. The article's headline told the story, 60% of physicians say electronic health records are harming patient engagement. The article reported that over half the physicians in the survey said that their EHR system had harmed their patient's quality of care.

Speaker 2:

I know exactly what dad would say if he heard doctors faulting EHRs for the decline in their quality of care. He'd say It's a poor workman who blames his tools, a matter of life or death or both. In healthcare, we face issues of life or death all the time. Here's a case that raises the issue in an interesting way and resolves it in an even more interesting way. Ben Schreiber was serving a life sentence for beating man to death with an ax handle. He was being treated for septic poisoning. When he lost consciousness, despite his do not resuscitate instructions, the hospital resuscitated him. Schreiber takes the position that he was briefly dead and the resuscitation brought him back to life. Why is that important? Because Schreiber argues if he was dead, even for a split second, then he had completed his life sentence and should be released. Judge Amanda Potterfield of the Iowa Court of Appeals resolved the issue with Solomonic wisdom saying quote, Schreiber is either still alive, in which case he must remain in prison or he is actually dead, in which case this appeal is moot. Either way, he loses the case. Is Schreiber versus Iowa Court of Appeals are proms worth the effort? Here's a recent report on whether proms are worth the effort. Prom, P R O M is an acronym for patient reported Outcome Measures. PROMS reflect what patients say when they're asked how they feel after they've been treated. Those responses are converted into numerical prom scores. The New England Journal of Medicine surveyed clinical leaders on what they thought of proms and the answer was not much. About half of them said they didn't think proms had much value. After all, what would patients know about how they feel? There are a bunch of laymen with no medical training. That made me wonder, what if we turn the tables? What if the New England Journal of Medicine surveyed patients and asked them what they thought about surveying clinical leaders on the value of proms? My guess is the answer would be not much Grumpiest Provider Award. This month's grumpiest provider award goes to Illinois dentist Jim Orrington. Dr. Jim's network has a contract with UnitedHealthcare, which in turn has a contract with claims processor. Cyan Dental. Cyan Dental sent Dr. Jim a one page fax offering free online training on how to use its web portal if he wants to submit claims that way. Dr. Jim did not like receiving the fax. So what did he do? Did he kindly ask Saan not to send him any more faxes? No. Did he unkindly ask? No. He made a federal case of it literally suing in federal court and not just for himself, but for everyone who had suffered the terrible blow of receiving the onetime one page fax. Dr. Jim's theory. He was the victim of violation of the Telephone Consumer Protection Act, which is designed to protect people from unsolicited advertising by facts. C pointed out that the facts did not advertise anything. It simply told providers how to use the web portal if they wanted to. Providers who had a contractual relationship with Cyan through their network. Dr. Jim

Speaker 3:

Responded with several theories on why the facts was advertising. One theory was that it was a bait and switch tactic because he knew in his bones that if he took the free training, cyan would try to sell him something. The court threw out Dr. Jim's case holding quote. This fax was not advertising. It was simply good customer service. The case is Arrington versus Scient Dental Northern District Illinois. Son of Hal. Remember Hal, the diabolical computer in Space Odyssey 2001. Hal came to mind as I read an essay by Dr. Emily Silverman and the New York Times earlier this month. Her hospital recently adopted the Epic electronic health record system and she explained how intimidating the system is for the doctors who use it. The very first time she logged on, she was greeted with the pop-up message. You currently have deficiencies that are either delinquent or will become delinquent within one week. She felt like she'd done something wrong before she even got started. The closest the greeting ever comes to good news, read something like you still have zero delinquent deficiencies. Deficiencies that will remain on this message until they have been investigated and reassigned to another provider. The system never stopped second guessing her. It's always there hovering like a helicopter parent, a demanding stepparent that can't ever be satisfied. When she checked on a patient, she was close to the pop-up red deceased patient Warning, you are entering the record of a deceased patient. Are you sure you want to proceed? Some people say EHR systems don't have a heart or a personality. Dr. Silverman makes an excellent case that Epic does have a heart, an icy cold heart, and a personality, a judgmental, intimidating personality. Well, that's it for this month's edition of the Lighter Set of Health Law. I hope you enjoyed it. Check your AHLA Weekly and Connections magazine for the next edition.