AHLA's Speaking of Health Law

The Lighter Side of Health Law – February 2018

February 12, 2018 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – February 2018
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.

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. Speaking of health law, where we focus on the lighter side of health law. I hope you enjoyed this month's edition. Create your own brand. Build your own brand, how to create a brand, strengthen your brand. The non-fiction bestseller lists are full of books with just that business advice, maybe Englishman Simon Brame, B r a m h a l l. Misunderstood. He created his own brand SB for Simon Bramwell, and he put that brand on his handiwork. Did it bring in more business, more success? Quite the opposite. It got him a criminal conviction for assault a year's probation and a 10,000 pound fine. You see, Simon is a liver transplant surgeon and that brand sb, well, he put that brand on at least two of his livers. That's right. Simon branded the livers of two patients with his own initials. He did it with an Argonne Beam Coagulator. A device typically used for sealing blood vessels. You can't make this stuff up if the shoe fits. Jim Comer sued Dr. S Schulz of Dr. S Schulz's, footpad fame. Why was Jim so angry at Dr. S Schulz? Well, in a nutshell, Jim walked or or maybe limped into a retail store and bought a pair of Dr. Shoals orthotic inserts. He bought them off the shelf over the counter, and they turned out to be well off the shelf, over the counter, rather than individually fitted to Jim's feet by a doctor. You're wondering if Jim bought them off the shelf over the counter with no doctor in sight, why did he expect them to be custom fitted to his feet by a doctor? Well, Jim cited two reasons. First, the label on the inserts and the advertising said quote, custom fit. Second, the store had a Dr. Schuls custom fit orthotics, foot mapping kiosk. Jim put his feet in the kiosk and bought the size of inserts it recommended off the shelf and over the counter. He says he believed the inserts had been individually fitted to his feet by a doctor, even though of course the inserts had already been made and there was no doctor in sight. He sued not just for himself, but for every New Yorker who bought off the shelf over the counter inserts with no doctor in sight thinking they had been individually fitted to their feet by a doctor. And in addition to money, Jim asked for an injunction. Well, the court dismissed Jim's case for failure to state a claim. The judge said, quote, plaintiff need only to look at what he was buying to see. It was standardized, mass produced and over the counter asked for Jim's request for an injunction. The court dismissed it for, guess what? Lack of standing. The Second Circuit affirmed. You can't make this stuff up. The case is comer versus Bayer Consumer health. In the Second Circuit, it could have been life. Remember the old Kingston Trio song, bad Man's Blunder, A Prisoner relates his crime. I was

Speaker 2:

Feeling kind of mean. I shut the deputy down and his punishment, they gave me 99 years on the hard rock pile. But being a glass half full kind of guy, the prisoner sees the bright side of the 99 year sentence, observing it could have been life. The song comes to mind when reading about the sentence of Eeb B to long. That's T I L O N G and his wife Marie, for a home healthcare scam that cheated Medicare out of 13 million. 13 million is serious money. So observers expected serious punishment, but Judge Melinda Harmon still managed to surprise just about everybody. 53 year old Marie was sentenced to. Are you sitting down 75 years? Marie will be 128 when her term is up. But even when Marie's term ends, Mr. Telong will still have another five years to serve because he got 80 years. Well, a term of 75 or 80 years is a long time, but as the Kingston Trio reminded us, it could have been life. The case is United States versus Telong Southern District of Texas Too good to be true or legal. It was music to the ears of Floridians who wanted to use marijuana. Attorney Ian Christensen issues a official legal certification and a patient identification card advising law enforcement that the bearer has received a marijuana prescription and has the legal right to possess and use marijuana. Want to grow marijuana? No problem. For a fee, Ian issues a quote, grow sign authorizing you to grow marijuana on the premises. Ian fails to mention that medical necessity is an affirmative defense that can only be raised after you've been arrested and are being prosecuted. And good luck with the defense since the doctor who wrote the prescription is unlicensed. When people see your growth sign, they call 9 1 1. The police arrive. You ask Ian if you should dismantling operation. He says No. He'll call the police and educate them, but he doesn't. A SWAT team in full tactical gear storms your home and arrests you as a drug trafficker. Ian's advice report the SWAT team members to internal affairs for damaging your home. You fire Ian and hire another attorney who negotiates three years probation, a$15,000 fine and 100 hours of community service. You're now a convicted criminal and lose your nursing license. You also owe your landlord$25,000 for damage and lost rent. Not surprisingly, Ian has reported to the Florida bar, which recommends Ian's law license be suspended for two years. The Florida Supreme Court rejects the recommendation finding Ian so hopelessly incompetent that the only remedy is permanent disbarment. The case is Florida Bar versus Christensen. January, 2018. Maybe it was the ditto marks last year, the Disciplinary Council of the Ohio Bar ruled that Scott Smith, formerly his firm's managing partner, had engaged in fraudulent billing of nursing home clients. He was suspended from law practice and ordered to pay$20,000 in restitution. Here are some of the billing practices. Sometimes when an associate turned in time, Smith crossed out. The associate's initials replaced them with his own and increased the hourly rate accordingly. Sometimes he merely entered more time than was actually spent. Sometimes his description of work was pure fiction, but it was the ditto marks that C clenched his fate. That's right, ditto marks. He would write a description of work performed for a client and then used ditto marks to indicate he'd done precisely the same work on other cases and for other clients. One problem with the approach is that the description he did out in no way matched any service the clients wanted or received. How did it all come to light? Remember that associate whose initials Smith crossed out? Well, he is a partner now and when he got wind of Smith's scheme, he launched an internal investigation. The firm reported its findings to the disciplinary counsel. The case provides two lessons. First, that associate whose work you take credit for may grow up to be a partner. Second, if you enter false billing descriptions, you probably should write them out in full. The case is Disciplinary Counsel versus Smith, Ohio. December, 2017, grumpiest Man of the Year. We have received a truly outstanding nominee for Grumpiest Man of the Year, a man who filed a federal class action against a health system for the heinous crime of sending him a flu shot reminder that's right for sending him a flu shot. Reminder, Daniel LA's primary care provider was a group in the Mount Sinai Health System. At the start of flu season, an automated dialing service sent flu shot reminder text messages to Mount Sinai patients. Daniel got one in response. He did what only a truly grumpy man would do. He sued Mount Sinai and his primary provider group, not just for himself, but for everybody who got a Mount Sinai flu shot. Reminder Daniel's theory. Well, the text was sent by an automated dialing system and the telephone Consumer Protection Act generally prohibits auto dialed telemarketing messages to cell phones without prior written consent. Why would a flu shot reminder be telemarketing? Well, as Daniel saw it, Mount Sinai was selling flu shots and trying to sell something is telemarketing. But as the trial judge noted in throwing out Daniel's case, the statute exempts healthcare messages and a flu shot reminder is clearly a healthcare message still grumpy. Daniel appealed to the Second Circuit. That court affirmed the trial court and added a second reason for throwing out Daniel's case.

Speaker 3:

Namely, among the patient intake forms he signed was a consent to receive texts from Mount Sinai. No word on whether Daniel came down with a flu. The case is Latin versus Mount Sinai in the Second Circuit. Well, that's it for this month's edition of the A H L A podcast series. Speaking of health law, I hope you enjoyed it. Check your A H L A Weekly and Connections magazine for the next edition of Speaking of Health Law.