The Lighter Side of Health Law – February 2022

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.

Transcript

Speaker 1: 0:07

This episode of HL, a speaking of health law is brought to you by HLA members and donors like you. For more information, visit American health law.org.

Speaker 2: 0:21

Hi, I'm norm Taber with this month's edition of the lighter side of health law. Doctors are only human admitted. You check your smartphone way more than you want to. Even when you're at work, supposedly with your mind focused on the job at hand, you find yourself, checking your phone from time to time you do it so much. Sometimes you're not even aware you're doing it well. What if instead of a lawyer or administrator, you are a doctor working in the, or say an anesthesiologist, do anesthesiologist sneak peaks at their phones when they're supposed to be taking care of unconscious patients on the operating table? Well, that's the allegation in this case, a member of an anesthesiology group alleges that others in the group take time to do things like watch football and pay bills when they're supposedly caring for surgery patients and the court agreed that the whistleblower has stated a valid claim. Here's the reasoning. Medicare requires that services be quote, reasonable and necessary and reasonable and necessary in turn requires compliance with accepted standards of medical practice and the whistleblower's complaint makes a prima FAIA case that watching football instead of your patient false below accepted medical practice. Well maybe except for the super bowl, the case is us versus Intermountain healthcare, federal district, Utah, a Greek blessing. I'm usually an America first kind of guy. Normally I prefer our alphabet over the Greek alphabet, but when it comes to COVID 19, I'm glad we're using the Greek alphabet as in Delta variant and Aron variant. Why so simple? It's because the Greek alphabet has only 24 letters. That means that the most variance we can have is 24, not 26 threatened expose exposed, Indiana lawyer. Allen stout had a cracker Jack idea for preventing a woman from getting a protective order against his client armed with glossy eight by 10 intimate photos. The woman had given his client a told her that if she didn't drop the suit, the photos would have to become part of the public record. She dropped the suit. The Indiana Supreme court saw nothing to brag about it ruled that Alan had violated rules against making false statements conduct involving dishonesty, fraud, deceit, and misrepresentation, and conduct prejudicial to the administration of justice. Alan was suspended for in practice for 90 days. Oh yeah. I forgot when legacy steel company sued North Dakota attorney Jeff Braun for malpractice, his malpractice insurer refused to defend him. Why? Well, Jeff had represented the steel company in a lawsuit, but neglected to attend the trial, which resulted in a million dollar judgment against the company. But his mal PR application didn't say anything about a possible claim by the steel company. Well, Jeff explained I didn't attend the trial because I, I thought I had withdrawn from the case. But according to court records, Jeff's motion to withdraw from the case had been denied the outcome. The court ruled in favor of the insurer and against Jeff observing that an attorney should know that if a client thought he was representing it, but he didn't bother to attend the trial resulting in a million dollar judgment against the client. That client just might Sue him from malpractice and his malpractice insurance application ought disclose. The matter the case is Alps property and casualty versus legacy steel. Eighth circuit ti a puzzlement as the king repeatedly says in the king. And I ti a puzzlement when a lawyer thinks that a Yelp or Facebook entry makes him look bad. Why in the world would he make a federal case out of it? Even if he won the case. And so far that hasn't happened, the lawsuit means that thousands, maybe hundreds of thousands more PE will read the comments. And the comments may well be memorialized in federal decisions that live forever. The latest entry on this fools errand is lawyer David Fraden. And in this case, he actually started the Facebook exchange by making an unkind comment about Ukrainians. Well, readers took to social media to make negative comments about David sensing himself in a hold. David decided to keep digging. He sued in federal district court and when he lost there, he took it to the seventh circuit, which reminded him that the comments were opinions and opinions. Can't be false. Let alone defamatory because as Fraden versus Jamira, there are friends and there are friends we know from Gerstein that arose is arose is arose, but a, a recent Kentucky opinion reminds us that we can't say the same about friends. According to this opinion, there are friends. And then there are friends. The issue came up after the plaintiff lost a medical malpractice case and appealed claiming that the judge had an undisclosed conflict of interest and should have recused himself. What was the conflict? The judge was friends with the defendant doctor Facebook well does being Facebook friends with one of the parties, constitute a conflict of interest for the judge. The court rule that it depends. Facebook friends cover a wide range of relationships from mere familiarity to acquaintance, to close friendship, to intimacy. There's no such thing as a one size fits all Facebook friendship. So the case was remanded for further explanation of just what kind of friendship exists between the judge and the defendant, because ands versus St. Elizabeth medical center, Kentucky court of appeals, creative fiction award, the Massachusetts Supreme judicial court has formally recognized attorney Dorene's and Kowski for her creative fiction. Unfortunately, the fiction was in her client in voices in a single year Dorene's creativity enabled her to record nearly 4,000 billable hours a year in which she also made three personal trips to Hawaii and traveled to San Diego, Denver, Chicago, New York, and several cities in Texas. Her creativity sometimes enabled her to bill more than 24 hours in a single day. When asked for her records, do Irene revealed the secret of her creativity. She doesn't believe in recording or keeping track of her own time. Her assistant ghost writes a draft billing report, which Doreen then edits upward in one nine month period. She edited upward to the tune of 450 additional billable hours. The law firm, where she worked at the time has done its best to calculate the overcharges and repay the clients. She now works at another firm, or at least she did until the court suspended her license. For two years, you can't make this stuff up. The case is en Ray Zen Kowski Hey, they're only horses. Here's a strange to fence, a group of racehorse trainers, a racehorse product supplier, and a veterinarian have been indicted for violating the federal food and drug act. They're charged with a long running scheme to manufacture, distribute and administer performance enhancing drugs to racehorses, but the defendants have a defense. Is it that they didn't do what they were accused of that they didn't pump racehorse full of performance, enhancing drugs to make them run faster? No, their defense is that they can't be convicted unless they defrauded human consumers or a human consumer protection agency like the FDA. And since horses, aren't the kind of consumers the law is intended to protect. The government has no case. What did the court think of the defense? The not much the trial court rejected it in us versus Grasso at Al Southern district of New York C centered for RA Kane, Arkansas judge, Brad Carron has been C centered by the judicial discipline commission for raising Kane. You're wondering what he did well, he raised Kane, his cane. He walks with a cane because of a hip replacement. And when he pulled into the courthouse parking lot, he, you found that a 20 year old college student had parked in a space clearly marked reserved for judge Carr in 24 7. Then according to the commission, he angrily berated the young man and threw his cane down as if to clear his hands for a fight, adopted an aggressive stance and angrily berated. The young man as luck would have it. The young man's dad, a state representative was on the scene to film the incident and post it online, where everyone in Arkansas, including the disciplinary commission could watch it over and over. The commission found that the judge had failed to conduct himself with dignity, frankly, though, as a man in his seventies who has had to use a cane after orthopedic surgery, my sympathies are more with the judge than the 20 year who illegally parked in the judge's spot. Well, that's it for this month's edition of the lighter side of health law. I hope you enjoyed it. Check your HLA weekly and health law connections magazine for the next edition.

Speaker 1: 8:16

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