The Lighter Side of Health Law – November 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 ala Speaking of Health Law is brought to you by ALA members and donors like you. For more information, visit american health law.org.

Speaker 2: 0:22

Hi, I'm Norm Taber. With this month's edition of the Lighter Side of Health Law, the 15 million Leap, there's a persistent myth that really smart people lack practicality. That's the basis of the absent-minded professor stereotype. Well, the myth has been given further fuel by Harvard's recent running with its insurance company as everyone is known for years, and that includes Harvard's insurance companies. Harvard has been sued over its admission policy of taking race into consideration. Well, the case has proved very expensive. How expensive? Well, Harvard has run through the 25 million of basic insurance and is well into the 15 million covered by its excess policy. But when Harvard contacted Zurich about that excess coverage, Zurich said, we're not paying. Why not Harvard gasp? Because Zurich said you're over one year late in giving us the formal notice required by the policy. O Butsu knew about the case all along. Everybody knew about it. Yeah, but we didn't get the formal notice required by the policy, and the court ruled in favor of Zurich citing the clear and unambiguous language of the policy. Call it a 15 million late fee. The case is Harvard versus Zurich District of Massachusetts. Why will always need lawyers? Here's a case proving yet again that we'll always need lawyers. Why? Because even the most straightforward looking situation can be full of legal issues. Phillip, as fors operated a network of nursing homes in the Miami area and a sprawling healthcare fraud case in 2019. He was convicted on 20 federal counts, but in January, 2021 on his way out the door, then President Trump commuted the sentence. So Phillip is now home free. Right? Wrong. When the jury convicted him on 20 counts, they fail to reach a verdict on six counts. Now, federal prosecutors say they will retry Phillip on those six counts. Can they do that? That's why we need lawyers, prosecutors, and defense lawyers will duke it out before the 11th circuit. A truly unfortunate analogy, when Pennsylvania dentist Paulina Zino sued Sentinel Insurance Company seeking business interruption coverage for losses during Covid, she thought she had the perfect analogy to win. Post-it notes, the Covid virus is like Post-it notes. She argued the virus sticks to the surfaces of my dental office and everything in it so it causes real physical damage that interrupted my business. Was the judge impressed? Well, in a word, no. He pulled out a stack of post-it notes and demonstrated that he could put them on the papers and then peeled them off without doing any damage, whatever to the papers case dismissed. The case is Zino versus Sentinel, Western District, Pennsylvania. What a picture is worth is often said that a picture is worth a thousand words, and that's mostly true, but not always take those stylized arrows on the elevator telling you which is opening, which is close. They're harder to interpret than the words open and close. But I digress. Here's a case saying a picture is worth$5,000. That may not sound like much, but there were 46,500 of those pictures when truck drivers came to the rail yard to pick up or drop off loads, be in F railway, secretly scanned their fingerprints for ID purposes. Doing that without the truck driver's consent violated the Illinois Biometric Information Privacy Act, which prescribes a penalty of$5,000 per violation. So all told these pictures are worth$2.28 million. Flattery will get you sanctioned. They say imitation is the sincere form of flattery. If so, then Pennsylvania attorney Christine Munyan really flattered her opposing counsel. When that opposing counsel filed a motion and brief on an evidentiary matter, Christine simply copied it word for word in nearly every paragraph of her own motion in brief. In fact, she even included opposing counsel's errors like missing spaces and forgetting to close quotation marks. Federal Judge Jean Patter ruled that Christine's particular form of flattery was unethical. She was sanctioned$8,400. The case is stil versus Borough of Westchester, Eastern District, Pennsylvania, the days of her life. In our last episode, Elizabeth Holmes, one time Vander Kent of the blood testing world had been convicted of massive fraud along with her boyfriend, Sonny Alwan. But help seemed to be at hand when a prosecution witness told Billy her new boyfriend how bad he felt about his testimony. Elizabeth moved for a new trial, but Atlas the witness said he had testified truthfully and the judge denied the motion. Now, the Feds propose 15 years in prison given the massive scale of the fraud. But Elizabeth says that's mean and instead of prison time, she should be grounded. That's right. Grounded required to stay home. I understand that Elizabeth is willing to limit screen time if that will help avoid prison. Is a golf cart an automobile? Did you ever wonder if a golf cart is an automobile? Why would I wonder that You're wondering? Well, you would wonder that if you were driving a golf cart when you entered someone, you'd wonder whether your auto insurance covered the incident. Of course, the answer to the question depends on the language of your policy, but even a detailed definition of what vehicles are covered might leave some room for doubt in Geico versus Gonzales. The 11th circuit rule that a golf cart is a quote auto, because auto was defined in the policy as a quote, private passenger auto because it was a quote four wheeled privately owned passenger vehicle. The court was influenced by the fact that the incident occurred in Florida where it's legal to drive carts on public roads. If it had been New York where it's illegal, the result would probably have been different. A full service assistant, like a lot of lawyers, main attorney Donald Brown, let his CLE requirements sneak up on him. He belatedly realized he needed 12 more hours, so I signed up for four live seminars that require watchers to acknowledge their presence when prompted. But as it turned out, Don, a very busy man had to be somewhere else at the time of those four seminars. No problem. He reasoned. I'll have my assistant log in for the CLE sessions, pretend she's me and confirm my presence. When prompted well, he got caught. Otherwise I wouldn't be talking about the case. And his punishment presents a catch 22. It's a one year suspension to be stayed if he complies with his CLE and accepts court appointed work including criminal defense and protective custody cases. But according to the main commission on indigent legal services, Don is not eligible to accept court appointments. That's the catch. Sadly, this isn't Don's first running with the ethics authorities. He was reprimanded for representing a client in a divorce case after they were in a sexual relationship, which he handled personally. Rather than assigning to an assistant, a medical expert must know the area. No one doubted that. University of North Carolina Med Center's, Dr. John Stge, qualified as an expert OB G Y N. Nevertheless, the court rejected his opinion and Mary Jackson's lawsuit alleging her deceased daughter was the victim of a botch hysterectomy. Why? Because Dr. Stge didn't know the area, not the area of practice, but the geographic area. He wasn't familiar with the ob gyn standards and practices in Kingsport, Tennessee where Mary's daughter was treated, and he didn't make any effort to acquaint himself with those standards before writing his opinion. Therefore, he failed the so-called locality rule. Case dismissed. It's Jackson versus Tebow, Tennessee Court of Appeals. Sometimes it's not what you say, but where you say it. Christina Del Vega was a passenger in her husband Sergio's car when it struck another car and seriously injured her. The claims adjuster for the insurance company offered her a hundred thousand dollars, the policy maximum, but later the adjuster called back and revised the offer down from a hundred thousand to 15,000. Why? Because the adjuster explained a quote, intrafamily exclusion very deep in the policy, limited coverage for family members to$15,000. The adjuster apologized explaining that in all her years as an adjuster, she had never come across the provision before. When Christina sued the insurance company, the trial court found on favor ruling among other things that the provision was ambiguous. The company appealed, pointing out that the provision was clear as day. The appeals court agreed with that point. There was no ambiguity in the provision, but where was the provision? The court asked rhetorically, was it on the policy declaration page where most consumers look for the coverage provisions? No. It was buried deep in the fine print, which was not fine with the court. So although the provision was clear as could be, it was unenforceable because of where it was located. The case is Del Vega versus the Traveler's Insurance Company, New Jersey Superior Court Appellate Division. Let's conclude with the complaint department where I complain about something that really bothers me or you. This month's complaint is about the way the entertainment industry has stretched the word live beyond recognition. When I was a kid, admittedly, quite a while ago, live entertainment met the performers were there in person in the same venue with you. Then it came to include a TV performance being broadcast as the performers performed. Then it came to include tapes of those same TV performances, broadcast later in different time zone. Then it came to include the tape of any performance that was originally called Live. So you can watch a live performance tape so long ago that the performers are all dead. Now, my TV channel guide tells me I'm watching a program live if I tune in when it's scheduled for a broadcast rather than say watching on demand. So if I watch The Godfather at the scheduled time, I'm watching it live even though the godfather, Mrs. Godfather, Fredo, and Sonny are all dead. Meanwhile, on the other side of the camera, why do TV announcers always say film before a live studio audience? What are the kind of studio audience is there? If you have a complaint, send it to me. Well, that's it for this month's edition. I hope you liked it. I'll be back next month with another edition of the Lighter Side of Health Law.

Speaker 1: 9:39

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