AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments. Sponsored by Coker Group.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments. Sponsored by Coker Group.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Support for A H L A and the following message comes from Coca Group, a national healthcare advisory firm working with hospitals and physician groups. Coca Group assists healthcare providers in their pursuit for a sound business model and an enhanced patient experience. For more information, visit coca group.com.
Speaker 2:I am Norm Taber with this month's edition of the lighter side of health law. Rodney Dangerfield, md. You might call neurologist Jonathan Fellas. The Rodney Dangerfield of doctors. When the patient he had an affair with sued him, the court agreed with her that what Jonathan had done was medical malpractice and awarded her two and a half million dollars. But when Jonathan sued his clinic's malpractice insurance company for indemnity, the court ruled that what Jonathan had done did not constitute professional services and wasn't covered. Why? Well, having a romantic affair wasn't what the clinic hired him to do. Besides the romantic activity was mainly conducted away from the office in Jonathan's home and hotels. So there you have it. When the patient sued Jonathan, he was guilty of malpractice. But when Jonathan sued the insurance company, it wasn't malpractice. As Rodney would've said, he don't get no respect. The case is fellas versus select medical holdings. Third circuit judge sinks iceberg. Actually, it was an iceberg brief. An iceberg brief is a brief with more of the material below the line in footnotes than above. The same way most of an iceberg is below the water line. There may have been a time when judges liked iceberg briefs, maybe because they looked scholarly and alerted, but today's judges not so much. The office of the controller turned in a 52 page brief with 48 footnotes taking up 300 lines of text. Page 24, for example, had five footnotes taking 21 lines along with eight lines of a block. Quote, how much actual argument? Four and a half lines. Four and a half unwilling to subject himself to ice strain. Federal Court Judge Jeb Bosberg, not to be confused with iceberg ordered the brief struck from the record and replaced with a new one with no more than 10 foot notes totaling no more than 50 lines. The case is conference of state bank supervisors versus controller of the currency DC District Court. When half a loaf is worse than none, half a loaf of bread may be better than no bread. But that principle does not necessarily apply to everything. Take the masks we wear to protect against the Covid 19 virus. You might think that a mask that's only pretty good is better than no mask. But a new study from Duke University says that's not so. Duke researched 14 kinds of masks. N 95 masks came out on top and handmade cotton masks and surgical masks fared pretty well, but bandanas and neck gators, those accordion like things that go all the way down your neck, did poorly, so poorly. In fact, that are you sitting down? They are worse than not wearing any covering at all. It's because they usually have a more porous fabric, which can break up bigger droplets into smaller droplets, more likely to float through the air. Researchers produced a video to prove it. You might call it Gator Gate when counterfeiting is medical malpractice. This is a case that's interesting in two ways. First, it shows how forgery can be medical malpractice. Second, that's the outcome the forgers wanted. A patient sued two physical therapists and their hospital for altering medical records. They turned over to the plaintiff's lawyer. The complaint accused them of criminal counterfeiting, forgery, perjury, and my favorite, the tort of outrage. Everything except medical malpractice. The plaintiff insisted he was not suing for the care he received, only for altering his records. The defendants argued that if there was forgery, the court lacked subject matter jurisdiction. The court agreed and dismissed the case, the Court of Appeals of affirmed. Why? Because the duty to maintain medical records falls within the scope of the Medical Malpractice Act, and that act requires that a lawsuit go before a medical review panel, before a court can have jurisdiction. Here, the plaintiff had not submitted the case to a medical review panel case dismissed. The case is Cortez versus Luk, et al Indiana. Court of Appeals perception becomes reality. We have lawyers have always felt a little smug because we know something that most people don't. Most people think that the doctors in a hospital are hospital employees, but we know that in the traditional model, doctors are independent contractors, not employees. Well proving yet again that perception is reality. More and more courts are ruling that if everybody thinks doctors are hospital employees, maybe the law ought to treat them that way. Minnesota is the latest state to make the change ruling that if a hospital holds itself out as providing care and patients look to the hospital for their care, then a court can hold the hospital responsible for the actions of the doctors. The same as if they were employees. One less thing to feel smug about. Darn it, the case is Popovich versus Allina Health. Minnesota Supreme Court airing dirty laundry in public, a hospital in Minnesota and a nurse are airing their dirty laundry in public. Literally, St. Paul's United Hospital fired nurse Cliff wiling for wearing hospital-based scrubs during his shift caring for covid 19 patients. What's wrong with that? You're asking, aren't hospital issued scrubs what nurses are supposed to wear? Well, no. The hospital responds. Nurses are supposed to wear their own dam scrubs, then take them home and launder them. The hospital has to launder the hospital issued scrubs and it doesn't want to be doing laundry for a bunch of nurses. So is Cliff too lazy to do his own laundry? No. Cliff says he doesn't mind doing laundry, but he doesn't feel safe carrying the scrubs back home after working because any Covid 19 virus on the scrubs might survive the trip. So Cliff is suing the hospital to get his job back and maybe a little help with his laundry credit where credit is due. Here's a cautionary tale about insisting on credit for your yours. A fierce discovery dispute has arisen in the multi-district opioid litigation in the northern District of Ohio. The plaintiffs alleged that AmerisourceBergen has wrongfully withheld incriminating documents. Front and center is an email chain containing a parody of the old Beverly Hillbilly's theme song, substituting hillbillies for hillbillies and callously making light of addiction. Needless to say, everyone at AmerisourceBergen now wants to be as far as possible from the cruel parody, but one person can't. The director of State government Affairs, she's on the chain crowing to a colleague. I sent this to you a month or so ago. Nice to see it recirculated, and she added a smiley face lesson. If you must make heartless jokes about your victims, don't do it in writing. Well, that's it for this month's edition of the Lighter Side of Health Law. I hope you enjoyed it. Check your A H L A Weekly and Connections Magazine for the next edition.