The Lighter Side of Health Law – October 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.

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Transcript

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<silence> This episode of A H L A speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.

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Hi, I am Norm Taber with this month's edition of the Lighter Side of Health Law, the high cost of recycling, North Carolina e N T. Dr . Anita Jackson really believed in recycling. How do we know? Because she performed over 1500 sinuplasty surgeries on a thousand patients using an F D A approved balloon like device that goes up the nose. But for all those procedures, she used only 36 devices. Her secret recycling, she used the same devices over and over and over, even though they are listed by the F D A as single, use only her other secret. For each procedure, she charged Medicare for a brand new device. Her recycling frugality netted her a cool $6 million in overpayments. What did the Feds think of Anita's frugality? Not much. She was convicted of Medicare fraud. Ordered to pay back the $6 million and sentenced to an impressive 25 years in prison. She'll be 87 at the end of her term. The case is US versus Jackson, Eastern District, North Carolina, arbitrability of Arbitrability. Here's something I bet you've never wondered about the arbitrability of Arbitrability. It's come up in a dispute. Over $70 million. Remember last month we discussed the $70 million success bonus that the outgoing Twitter board approved for the Wachtel Rosen Law Firm. Just minutes before the company's new owner, Elon Musk was scheduled to fire the entire board. Well , the company sued Wachtel in California State Court to get the money back. Wachtel moved to compel arbitration under the party's arbitration agreement. But the company has responded that the arbitration agreement exempts claims for equitable relief. And since Wachtel's greed and unethical conduct are allegedly at the heart of the lawsuit, the company's suit should be viewed as a claim for equitable relief. Wachtel replied, let's have the arbitrator decide whether your claim is subject to arbitration. The company responded. If you want issues of arbitrability to be arbitrated, you should have put that in the arbitration agreement. Postscript, the court sent the case to arbitration. Don't try this at home. Here's a good example of something you should not try at home or in court. Attorney John Graves represented medical technology associates in a case against a former executive, had a lot of evidence to help win the case, but he hadn't disclosed it by the discovery deadline. That's when he had a crackerjack idea. He would file a 61 page quote submission of legal arguments, but only seven pages would be arguments. The other 54 pages would be the evidence he wanted to get in. Pretty clever, right? Well, a little too clever in the eyes of federal Judge Michael Bason , who ordered John to quote , personally pay the defendant for all legal fees incurred after John's submission. What's more he ordered John to attend six hours of c l e on federal practice and procedure. An interesting footnote. John hired an ethics expert to oppose the sanctions. The expert opined, and I did not make this up, that because a sanction is so devastating to a lawyer's reputation, a judge should never impose sanctions on a lawyer who had not been sanctioned before. Think about that. No lawyer should ever be sanctioned for the first time. The case is Medical Technology Associates versus Roush , Eastern District, Pennsylvania. Maybe that's why they call it metadata. Well, here's another class. Action against Meta , A K a Facebook for snooping this time on protected health information, even health information of people who are not on Facebook. The lawsuit points out that meta has publicly admitted that it uses data from non-users for a variety of business purposes. The lawsuit says that the data includes protected health information. I read about the case in Law 360, which included statements by meta and I have to say that the statements were not very reassuring. Meta said its policies make clear to an advertiser that quote , it should not send sensitive information about people through its business tools. So I guess that's an acknowledgement that Meta does give the advertisers the sensitive information. And meta doesn't say it prohibits or prevents advertisers from sending sensitive documents only that it advises them that they shouldn't. And the statement goes on to say, quote , our system is designed to filter out potentially sensitive data. It is able to detect, not that it does filter out sensitive information, but that it is designed to do so and not all sensitive data. Only sensitive data quote . It is able to detect. I was more worried after I read meta statement than before. The case is E H L versus meta platforms, Northern District California nerve of a burglar award. This month's nerve of a burglar award goes to Connecticut attorney Jason Buckley, who is something of a multitasker. Jason is admitted in Maine as well as Connecticut. He was trying to have his main license reinstated after a suspension. His reinstatement material included his certification that he had completed two C l e courses, one for four hours and one for six hours. But the main bar spotted a problem. The two courses were given simultaneously, both on the afternoon of June 17. How can that be the bar demanded of Jason Easy. Jason replied, apparently with a straight face, I viewed one on my computer while viewing the other on my iPad. How could I have possibly known that was against the rules? Jason did not show up for his disciplinary hearing and has been suspended for an additional year. Great news for Massachusetts men. Here's some great news for Massachusetts men, courtesy of the State Appeals Court. You can get the engagement ring back even if you're the one who broke off the engagement provided you had a reason for breaking up. What's more, you don't even have to be right about the reason you can be mistaken and still get the ring. Bruce Johnson gave fiance Caroline Satino a $70,000 engagement ring. Then he broke off the engagement partly because he saw racy texts between Caroline and another man. He thought they were having sex. Well , it turns out they were not, but the court ruled that Bruce's belief that they were was adequate reason to break up. So Bruce got the ring back even though he was the one who called the engagement off, and even though his main reason for doing so was mistaken. The case is Johnson v Satino Massachusetts Appeals Court, the poorest workman, my dad must have said it a thousand times. A poor workman blames his tools. Well, if that's true, then David Cohen Special master in the massive opioid multi-district litigation in Ohio must be a pretty darn poor workman. You decide. Special Master Cohen is facing motions to disqualify him after he accidentally sent an email to all the lawyers. In all the cases , the email contained notes about the case and some of the lawyers say the notes show prejudice for and against certain parties. Cohen says he meant to forward the notes to himself, but he accidentally hit the reply all key . This is where my dad's favorite saying comes in. Cohen has an explanation for his error. It wasn't his fault quote . I think the left arrow for reply and the right arrow for forward are too close to each other on Outlook. So it's Outlook's fault for putting the keys too close together. You can't make this stuff up. Postscript, the appellate court denied the motion to disqualify him. The adventures of Kate and Holly remember the eighties sitcom, Kate and Allie ? Well, this is Kate and Holly, or technically Kate versus Holly. And Kate and Holly are both dummies. Literally they're rubber dummy heads. It seems that a startup called True inject all one word developed a rubber head called Kate to be used to teach doctors how to safely inject fillers like Botox. But then Galderma came up with a competing dummy head called Holly for the same purpose. When True inject collapsed, it sued Galderma for patent infringement claiming that Holly was just a ripoff of Kate. Well, now the court has ruled that True Inject has no evidence that Holly infringed on Kate and that basically the case has no merit. So Holly wins and Kate loses. I almost said Kate loses face, but since she's just ahead, there wouldn't be much left of her. The case is not really Kate versus Holly. It's true. Inject versus Galderma District of Delaware. You might be a legal scholar. Remember comedian Jeff Fox Worthy's tagline. You might be a redneck, as in if you go to family reunions to find a date, you might be a redneck, a case pending in the US Supreme Court brings that to mind only instead of you might be a redneck, it's you might be a legal scholar. Here goes. Do you know the difference between and and or If so , you might be a legal scholar . Mark Sr . Was convicted of distributing meth and sentenced to 14 years . He's fighting for a reduced sentence under a statute that entitles him to the reduction . If he does not have a more than four criminal history points, B, a three point offense and C, a two point violent offense. Mark says, Hey, the statute says I get a reduced sentence. If I don't have A, B and C, I don't have all three, so I get the reduction. The D o J says, it may say and, but it means or otherwise it would make no sense because almost nobody has all three of those things. So if you know whether and means and or and means, or you might be a legal scholar, complaint department, the waiting room tv, this month's complaint addresses what just might be the worst idea of the 20th century. The waiting room television. You've all had the experience. You know you have to sit in a waiting room for a while , but it won't be so bad because you've brought along a book, A magazine or a crossword puzzle waiting might actually be enjoyable because it's sort of enforced relaxation. But nine times out of 10, your plans are thwarted. Why? Because management has installed a television that's always turned on and always loud enough to wake the dead. You can't read or work your crossword because of the TV volume. Many times, maybe most no one is watching the tv, but that doesn't matter. Management has decided that the TV must be on nonstop. But even if someone is watching, why should that person be allowed to prevent everyone else from reading or some other pastime that requires quiet? My vote is to prohibit any activity that interferes with the ability of others to read work, crossword puzzles or doze . That includes loud telephone calls, loud music, and most especially television programs . If you have a complaint, send it to me . Well, that's it for this month's edition . I hope you liked it. Tune in again next month for another edition of the Lighter Side of Health Law .

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