AHLA's Speaking of Health Law

The Lighter Side of Health Law – November 2020

November 20, 2020 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – November 2020
Show Notes Transcript

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.

Speaker 1:

Hi, I'm Norm Taber with this month's edition of the Lighter Side of Health Law. The limits of documentation lawyers in the health field are fond of reminding their physician clients that quote, if it's not documented, it didn't happen. But what Dr. Malad Shaker apparently heard was, if it's documented, it must have happened. He was on trial for the unlawful distribution of controlled substances, namely exchanging opioid prescriptions for sex with a patient. His defense. Well, I documented the prescriptions in the patient's chart, therefore, they must have been for legitimate medical purposes. Q E D. The trial court was not persuaded by Dr. Shaker's novel defense. He was convicted on 14 counts of unlawful distribution and his sentence included a two-level enhancement for abuse of a position of trust. The case is US versus Shaker. Third circuit participation counts. Remember when your teachers and later your professors insisted that classroom participation counted and would affect your grade. Well, here's a case proving that participation may be even more important than you thought. Dr. Allison O'Donnell won a spot on the Cleveland Medical Center's prestigious pediatric endocrinology fellowship program, but two-thirds of the way through the program, she lost her spot. Why? Because although she attended the weekly case conferences with faculty and other fellows, she didn't actively participate, but she had an excuse, a formal diagnosis of social anxiety disorder and social phobia that prevented active participation supported by her psychiatrist. Alison proposed an accommodation, namely don't evaluate me on participation in the case conferences. When the hospital rejected the request, Alison sued under the ada. The District court granted summary judgment to the hospital and the Sixth Circuit Affirmed ruling that while it's true that Alison had a recognizable disability, active participation in the case conferences is an essential job function. So Alison's proposed accommodation wasn't reasonable because it would mean excusing her from an essential job function. The case is O'Donnell versus University Hospital's. Cleveland Medical Center, sixth Circuit, November Cruel Deve Award. The Cruel is named for the Venu in 101 dalmatians and is awarded for pure evil in the field of healthcare. This month's cruel goes to Dr. Steven Murphy. According to the New York Times, Dr. Murphy charges up to$583 for a test at his drive-through Covid test site in Bedford, New York. Why so high? When Medicare usually charges under$100, well explains the good doctor. These are super covid tests. I test for any and all viruses that may be around. Dr. Murphy has sued Cigna saying that the company won't pay his charges and that it has told its members that his COVID test sites are fraudulent and they'll have to pay out of their own pockets if they go there. You know a doctor deserves a cruel when you find yourself rooting for the insurance company. It's worse than we thought. We've known for a long time time that the Coronavirus Pandemic has had a devastating effect on American life. Deaths, hospitalizations, business shutdowns, unemployment, recession, you name it, but it's worse than we thought. Listen to these chilling headlines from three leading legal publications the Covid Pandemic could kill. The partner office reads, one, you must give up your office if you are not in. It reads another and most frightening of all big law partners, it's time to say bye-bye to your big offices. Each article tells the same tragic story. Partner offices were already shrinking one size fits all, and unassigned offices were becoming standard and more and more lawyers were working remotely. Then came the pandemic lawyers forced to work at home, discovered that it was not only possible, but in many cases preferable to practice that way. That's making firms wonder why the heck they should spend millions of dollars on office space that's not needed or even wanted. The bottom line is that for many of us, our dream of a big corner office is being crushed. It's enough to break your heart. The case. That was too good. Can a medical malpractice case ever be too good? You decide. Diana Hampton died as a result of an overdose of fentanyl prescribed by Dr. Steven Holper. The doctor knew that prescribing fentanyl for Diana was not only wrong but illegal. He proved his guilty knowledge by falsifying Diana's medical records to say that she had cancer and he admitted guilt when charged with violating federal controlled substance laws. Upon discovering that Dr. Holper had a hefty malpractice insurance policy, Diana's estate filed a claim. When the insurer declined coverage, the estate sued the outcome. The estate's case was thrown out of court on a summary judgment motion and the ninth Circuit affirmed why in effect, because the estate's case was too good. When the doctor admitted criminal wrongdoing and pleaded guilty, he triggered the policy exclusion for criminal acts. The case is National Fire and Marine versus Hampton Ninth Circuit Best Foot Forward. A recent decision reminds us that no matter what is being litigated footwear may be on trial. After the jury found against Christopher McClure in a case brought by the S E c, he moved for a new trial arguing that a juror's post-trial letter to an S E C lawyer showed prejudice. The letter congratulated the S E C lawyer on his when and noted that during deliberations, the jury had agreed that the defendant's wife looked to ritzy, especially her shoes, which must have cost$3,000. The court refused to consider the letter noting that the federal rules of evidence severely limit post-trial evidence that may be used to prove juror prejudice. Interestingly, the court was able to cite another federal decision right on point, a decision rejecting a juror's post-conviction letter to a prosecutor praising his snazzy Argyle sox. The case is s e C versus Westport Capital Markets District, Connecticut. Can a trial be too speedy? The Sixth Amendment guarantees defendant's a speedy trial in criminal cases but says nothing about civil cases, which can take years. But here's a case where the plaintiff in a medical malpractice case, Leslie Corey wants a new trial because her case, or at least part of it, was too speedy. Which part? The part where the jury deliberates how speedy? 14 minutes. That's right. After a seven day trial over the death of her husband following treatment at Wilkes Bear General Hospital, the jury took just 14 minutes to agree on a verdict. Leslie says, that's outrageous. 14 minutes is not enough time to reach a valid verdict. But is it really the speed of the deliberations that has Leslie so upset? Would she have complained if the verdict had been in her favor? Somehow I doubted the case. Is Corey versus Wilkes Bear Hospital, Luzerne County Court of Common please. Males take all the credit again. Here's another example of males taking credit for something females accomplished last month. Modern healthcare carry the headline. Drones delivering vaccine for Merck, praising drones for delivering life-saving medications and newspapers across the country have reports every day about drones doing all kinds of useful things from enabling farmers to survey crops hundreds of miles away to firing lethal missiles at terrorists. What's wrong with that? You're asking? What's wrong is that it gives credit to males that should go to females. Drones are male bees. They are fat and lazy and they only leave the hive to try to mate and they can never be a threat to anyone, let alone terrorists. Why? Because they don't have stingers. The bees with stingers are worker bees, not drones. And yes, worker bees are females always. So if you want to use a bee metaphor to describe a hard worker or useful device or a weapon, you should refer to female bees. The males drones are the opposite of useful and hardworking. There, I've said it 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.