AHLA's Speaking of Health Law

The Lighter Side of Health Law – May 2021

May 28, 2021 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – May 2021
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. Passing the Smell Test. A new double-blind experiment in France has confirmed that this COVID test is 97% accurate. That's better than the 15 minute antigen tests that are widely used. What's more this test takes only seconds is non-invasive and costs only pennies compared to about$25 for the antigen self-test kit. Can you guess how this test works? Here's a hint. The pennies per test price tag goes mainly to buy Alpo. That's right. It's a smell test administered by dogs. Dogs are better at detecting covid than we are, even if we use a$25 test kit. Looking on the bright side, back in the sixties, the Kingston Trio had a hit with a novelty song titled Bad Man's Blunder. It's about a nado, well, who as he puts it, shot the deputy down. He's sentenced to 99 years, but he puts a positive spin on it. Observing it could have been life. The song came to mind when I read about Virginia Surgeon Jve perks convicted of Medicare fraud, including countless unnecessary surgeries. He was sentenced to 59 years in prison. A Google search told me he's 71 years old, meaning he'll be 130 when his sentence is up, but hey, it could have been life, so you think you no tax. Here's the new tax I had never heard of it. Pink tax? Yes, I said Pink tax and no, it's not a tax on certain shades of paint or lipstick. Pink tax is what consumers, particularly women consumers call the excess of what women are charged over, what men are charged for the same product or service. Pink taxes in the news in California where consumers have filed a proposed class action against Walgreens for charging one and a half times as much for a hair loss product packaged for women as for the same product package for men. Now you know, will someone please take that man shovel from him? There's no doubt that attorney Ken Levine was in a hole, but did he really have to keep digging? It started with Ken's crackerjack idea for settling a federal case on favorable terms. He drafted a favorable agreement, signed his name, and then signed the assistant US attorney's name. Yes, he forged the signature of the assistant US attorney. He was in a hole because he got caught. Note to self assistant US attorneys generally know whether they've settled a case confronted with a forgery. Ken replied with all the imagination of a six-year-old with his hand in the cookie jar. Your Honor, it was an accident. Yes, he testified under oath that he had accidentally signed the prosecutor's name when an audit revealed that he had inflated his expenses. He did exactly what we have come to expect. He created phony invoices to back up the phony expenses brought before the state bar for his misdeeds. Ken responded by providing false testimony caught in his forgeries, fake expenses, phony invoices, and false testimony. He finally put down his shovel and resigned from the bar, which gave a collective sigh of relief. The case is Enri. Kenneth Levine, state Board of Bar Overseers attorney-client Privilege and toothpaste. Novartis recently found out why the attorney-client privilege is like toothpaste. The plaintiff's claim that a Novartis product taken by their mothers contributed to their autism. At a deposition, Novartis entered an in-house lawyer's letter as an exhibit noting that it was covered by the attorney-client privilege. When Novartis later moved for summary judgment, the plaintiffs used that letter to rebut the motion. Novartis cried foul and demanded the letter back. The court ruled against Novartis noting that the company had voluntarily revealed the letter at the deposition. And just as you can't put toothpaste back in the tube, you can't unveil an attorney-client document. It did not help Novartis's case that it waited four months before demanding return of the letter. The case is Novartis versus Superior Court of San Diego County, California Court of Appeals hoist with her own pitard. A pitard is that little round bomb with a wick that spies are always holding in old cartoons. The phrase hoist with his own pitard comes from Hamlet and it refers to someone being blown up by his own treachery. The phrase came to mind when I read Judge Sarah Ellis's question of the lawyer for Jasmine Harris. Jasmine wants to certify a class to sue Topco for fraud because it charges more for its infants pain reliever than for its children's pain reliever. How is that fraud? The judge asked. Well, Jasmine's lawyer responded It's fraud because they're exactly the same product. You can easily tell by reading the ingredients on the label to which the judge replied. Well, if your client could easily tell that the same product, why in the world did she buy the more expensive one? A week later, the judge dismissed the case. The case is or was Harris versus Topco Northern District, Illinois. The Straight Face Award. The Straight Face award goes to the lawyer who makes the most laughable argument while maintaining a perfectly straight face. This month's runaway winner is Robert Williams who represented a plaintiff suing its insurance company for refusing to cover losses related to coronavirus. Robert was undaunted by policy provisions that expressly exclude loss or damage caused by virus. His argument was simple. Coronavirus is not a virus. You heard correctly. Robert argued that regardless of what the world thinks and not withstanding the final two syllables of the term coronavirus, the jury is still out on whether Coronavirus is actually a virus. In his brief, Robert bolstered his argument by quoting well-known medical expert Donald Trump as saying looks like by April, you know in theory when it gets a little warmer, it miraculously goes away end. The judge was impressed by Robert's nerve but not as logic. She dismissed the case. The case is Stern and Eisenberg versus Sentinel Insurance District, New Jersey. Legal Ethics riddle. This month's legal Ethics Riddle is based on a recent ruling by the New Jersey Advisory Committee on professional ethics on a subject that's come up in several states. The facts are simple. You send a letter to opposing counsel with a copy to your client. Opposing counsel answers your letter with a copy to your client. Now, the riddle has opposing counsel violated the prohibition on directly communicating with your client. The answer at least in New Jersey, is yes and no. If the letter is on paper, the answer is yes. By copying your client, the opposing lawyer has violated the prohibition. It makes no difference that you copied your client on your letter. But if we're talking about email and the opposing lawyer copied your client by hitting reply all there is no violation. The New Jersey Committee regards your copying your client on your email as an implicit consent to allow opposing counsel to include your client on the response, but only if it's by email. Here's a tip. Instead of copying your client on your email to opposing counsel, wait and then forward a copy from your sent file crowded at the top. Garrison Keeler always got a laugh when he said that in Lake Wobegon, all the children were above average, but that statistic is nothing compared to the requirement slated to go into effect next year. For organ procurement organizations, all OPOs will be required to at least match the lowest donation and transplant rates of the top 25% of all OPOs you heard correctly in terms of donation and transplant rates, every OPO O must qualify for the top quarter of all OPOs. You can't make this stuff up. Cupid's Arrow Fells med mal case Don't try telling Vincent Greco that romance is dead. Vincent sued Dr. Hans Schmidt for medical malpractice. The case had already been repeatedly postponed when Vincent asked for yet another delay. Why? Because on the eve of the trial, Vincent's star expert witness announced that she could not testify. Why not? Because she had fallen in love and was moving to New York to be with the man she loved needing employment in New York. She applied for a position with, you guessed it, Dr. Hans Schmidt, the defendant in Vincent's case fed up. The judge not only denied the request to postpone, but dismissed Vincent's case altogether, and that's how Love conquered a med mal case. The case is a state Ofo versus National Medical Consultants District New Jersey. 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 Health Law Connections Magazine for the next edition.