The Lighter Side of Health Law – June 2023

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. Proud of his work, California plastic surgeon, Michael Oing was apparently proud of his work on patient Jenny Buckley. How do I know? Because he posted nude photos of Jenny on his personal and clinic social media accounts. Had Jenny consented? No way. In fact, she didn't even know about the posts until friends and colleagues told her husband John, about them probably snickering. All the while they promptly demanded Dr. Mike take the photos down. He eventually did, but only after waiting three weeks, Jenny and John sued Dr. Mike, who chose to ignore the suit, resulting in a $600,000 default judgment against him. The default judgment got his attention causing him to appeal his grounds. He said he had never been served. The Appeals Court didn't believe him, noting that he had failed to respond to any of the other court documents, which he admitted receiving. The court affirmed the $600,000 judgment against Dr. Mike. His lawyer says he will ask the court to set aside the judgment. Good luck. The case is Buckley versus Oing, California. Court of Appeal, and you thought lawyers were legalistic. Sinai Health System Nurse Jamila King has sued Sinai for violating her biometric privacy and just how did the violation take place? Well, the hospital's drugs are stored in dispensing cabinets, and to open a cabinet, a nurse has to scan a fingerprint. What's wrong with that? Well, nurse Jamila Huffs, my fingerprints are my personal identifying information and I never gave Sinai permission to collect it. Well, yeah, I implicitly gave permission by accessing the cabinets when I knew it took a fingerprint to do so, but I never explicitly consented. Her lawsuit alleges that quote , no amount of money can compensate her for Sinai's actions. So she's not asking for money right, wrong. Maybe no amount of money can compensate her, but she wants the money anyway. The case is King versus Sinai Health. Cook County Circuit Court, an ounce of prevention in Southern California. There's a federal judge who apparently believes that an ounce of prevention is worth a pound of cure. He applied that principle to a 13 year old girl handcuffing and detaining her in the jury box. What had she done to deserve the treatment? Nothing. He just wanted to show her what could happen if at some time in the future she did do something wrong. It happened at her dad's sentencing hearing. He said he wanted to leave San Diego so his daughter wouldn't end up using drugs. Spotting the daughter in the audience. The judge ordered a federal marshal to handcuff her and as she began to cry to put her in the jury box. After a while, the judge asked her how she liked the restraints. She said she didn't. The judge told her she was cute, but that if she started using drugs, she would end up in handcuffs. The chief judge of the ninth surrogate has announced an investigation into the judge's actions. By the way, this is the same judge who overturned the state's ban on assault weapons, proclaiming that the AR 15 rifle is like a Swiss Army knife cooking his own goose. In this age of Yelp, you've probably wondered what to do about a bad review of your practice. Here's a lesson on what not to do. New Jersey lawyer Brian Kalpin , formerly represented client Angie. She posted a bad review of Brian's law practice. In return, Brian posted a bad review of Angie's Massage Parlor, but it didn't stop there. He went on to post the information that Angie had been convicted of a felony and for shoplifting and for dwi. He added , quote , hold your wallets during a massage. When brought up on ethics charges for posting defamatory information of about a former client, Brian had two defenses. First, he argued what's good for the goose is good for the gander, meaning that Angie had given him a bad review online, so he was entitled to give her a bad review. Second, her criminal history was a matter of public record , so he hadn't told people anything. They didn't already have a right to know, but the state Supreme Court didn't see it that way. Ruling that the duty to a former client includes the duty to refrain from using information relating to the representation to the client's disadvantage. Also, there's a difference between information that is technically publicly available like Angie's criminal record and information that is generally known. Angie's record was not generally known until spilled the beans. The court suspended Brian's law license for a year. The case is Enri Kalpin , New Jersey Supreme Court Chatbot Esquire goes rogue. This didn't take long. It was only two months ago that I reported that a chatbot outscored real law students on an exam overseen by three law professors. It looked like there was no end to the talents of artificial intelligence in lawyering. Well, it turns out that AI is a little too much like a real lawyer, so much so that it has our bad traits as well as our good ones. Just ask attorney Steve Schwartz. Steve relied on AI namely Chat G P T for his legal research in a federal case, and sure enough, the chatbot came through. It came up with case after case supporting Steve's position enough to fill an impressive 10 page brief. There was only one problem. The cases don't exist. The chatbot made them up. It also made up cases within the made up cases. How did real lawyer Steve respond when the judge confronted him with a sad truth? Well, Steve said, I double checked and verified that the cases were real and just how did you double check ? The judge asked. I asked the chat box if the cases were real and it said yes. You can't make this stuff up. Auto eroticism update. A couple of months ago we discussed a case of what might be called auto eroticism. The case of the Missouri woman who was awarded 5.2 million for an injury she suffered in a car insured by Geico, her injury, and S T D. Why was the auto insurer liable? Because she incurred the S T D in the backseat of the car Q E D? Well, the case was remanded because Geico hadn't been given a proper opportunity to oppose the claim this time. Wiser heads prevailed. The federal court vacated the award ruling that the backseat sex does not qualify as a quote , use of the auto under the policy language. The case is Geico versus m o Western District of Missouri Greediest person in the World Award. This month's greediest person in the World Award goes to Staten Island resident Vladislav. Kaar . Remember the great baby formula famine. Moms across the nation simply could not find baby formula that their infants needed. Well , Vlad had a crackerjack idea. He stole medical information of infants with food sensitivities and used the information to forge prescriptions. Then he contacted a pharmacy and a distributor and had the formula shipped to him and then bingo, he could sell it to the desperate moms. Well, that's pretty darn greedy, but I'm not sure that alone would qualify him for the award. It's the second element that put him over the top. When the formula arrived, he would claim it was the wrong formula or it had been damaged so he could get a replacement supply at no extra charge. Well, all good things must come to an end. Vlad got caught and pleaded guilty to mail fraud and agreed to forfeit a million dollars and pay another three quarters of a million dollars in restitution and is awaiting a prison sentence. The case says , US versus Cottar , Eastern District of New York, at least I'm not that guy. Award . Okay. I know it's not an attractive quality, but sometimes I take comfort in another person's misfortune. It's not that I'm glad the person is suffering, it's that I'm glad it's not me, and sometimes it even makes my problems seem smaller. That's why I created the, at least I'm not that Guy Award. This month's award goes to the unknown person at Harvard in charge of notifying Harvard's Insurance Company of claims. Well, it turns out that person did not send Zurich formal notice of the lawsuit challenging Harvard's admission policy. The policy would've covered 15 million in legal fees except that Harvard never gave formal notice to Zurich. Now, Harvard is suing Zurich arguing that Zurich had actual knowledge from news reports and didn't need formal notice. Harvard lost at the trial level and has appealed to the First Circuit where the judges seem highly skeptical of Harvard's position. The case is Harvard versus Zurich First Circuit. 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: 8:51

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