The Lighter Side of Health Law – May 2019

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.

Transcript

Speaker 1: 0:01

Hi, I'm Norm Taber, host of the A H L A podcast series, the Lighter Side of Health Law, sponsored by Coker Group. I hope you enjoy this month's edition. Why it's better to punch an accountant than a nurse. Here's something I never knew until this month. You're better off punching an accountant than a nurse. I discovered this when I read that Tiana Solace was arrested in Providence, Rhode Island for punching an ER nurse at Women and Children's Hospital. I wasn't surprised that Tiana was arrested. What surprised me was the specific charge, quote, assault on a healthcare provider. So I checked on Google and sure enough, most states have a specific crime for assaulting a healthcare provider on the job. In my state, Indiana, for example, assaulting someone is generally a misdemeanor, but assaulting a healthcare provider on the job is a felony. That's why if you have to punch somebody, it's better to punch an accountant than a nurse. When a lawyer's word is not enough, generally courts take a lawyer's word at face value, but as Jaylene Lambert and her lawyer recently learned from the Kansas Supreme Court, that's not always the case. Jaylene was administrator of the estate of a man whose death allegedly resulted from medical negligence. Her lawyer electronically filed a wrongful death case against 11 healthcare providers. On June 22, the last day of the two-year statute of limitations, the court rejected the filing because of a technical issue. The listing of the parties and the petition didn't match the parties in the court record, so her lawyer refiled the next day, June 23, listing the parties correctly. The lower court granted the motions to dismiss filed by defendants because the corrected filing was filed one day after the statute of limitations had run on appeal. Jaylene's lawyer argued that the court should treat the case as filed on June 22 because the June 23 filing was a duplicate of the first filing except for correcting the technical issue. Did the court accept the lawyer's argument? No. The court would not even consider the issue she raised. Why not? Because the lawyer didn't offer any evidence. Nothing but her word. Word given. In arguing the case, what's puzzling and unanswered is why no evidence was offered. The court makes clear that an affidavit would've sufficed an affidavit confirming that the June 23 filing was the same as the June 22 filing. What's more? Kansas requires lawyers to retain a copy of all filings, so Jaylene's lawyer should have copies of the June 22 filing to show that it matched the second filing. Jaylene lost the appeal and any right to pursue the medical malpractice or wrongful death case. The case is Lambert versus Peterson, Kansas Supreme Court. Strange lawsuit, strange outcome. Here's a case that registers at least nine on the 10 point weirdness scale, both for the theory of the case and for the basis of the outcome. James Weems was convicted of attempted murder after he shot Ernest Bradshaw twice in the head at pointblank range. Bradshaw was treated at Hillcrest Medical Center and survived. This is where it gets weird. Weems sued the hospital for medical malpractice. You heard correctly, Weems, the man who fired the gun alleged that the hospital was negligent in its treatment of the man he shot. Brad Shaw. Was Weems alleging that Brad Shaw got poor treatment or was a victim of negligence? No Weems. The assailant alleged that he himself was the hospital's victim. How so? Because Weems alleged Brad Shaw was not shot at all. The hospital made that up and put it in the medical record resulting in Williams's arrest and conviction. If you think that's strange, listen to the reasoning of the Texas Supreme Court in throwing the case out. Was it because the fraud that Weems was alleging was not medical malpractice by any stretch of the imagination? No. Quite the opposite. The court accepted Weems theory that he was alleging medical malpractice, but since he was, he was required by the Texas Med mal statute to file an expert report and he hadn't done so. So his case was dismissed. I can't help wondering what the expert report would've looked like. Would the expert have recited that saying a patient has been shot twice in the head, falls below the community standard of care for patients who have not been shot twice in the head? Does it take an expert to know that you can't make this stuff up? The case is Baylor Scott and White versus Weems, Texas Supreme Court. Shakespeare on medical staff credentialing who says a background in English literature has no practical value, certainly not the attorney's defending dimensions. Health In a case filed on behalf of ob gyn patients, their motion to dismiss invoked one of the Bard's most famous lines. There's no denying that Dr. Akok was a fraud. For one thing, his name was Igre, not a Koda. Time after time he got social security numbers by using fake names. Medicare denied his application for enrollment because he used a fake social security number. He used someone else's social security number to get his medical license. In Maryland, he used false information to gain foreign medical graduate approval to enter a residency program and to practice medicine. The complaint against Dimensions relied primarily on the theory of negligent credentialing. Namely Dimension should have known a Coda was a fraud. Did Dimensions concede negligence not on your life? Dimensions noted that the man did in fact have a medical license. What difference did it make, whether his name was a Coda or IG race? This is where Shakespeare on medical staff credentialing comes in. Dimensions argued, quote, as Shakespeare wrote over 400 years ago, what's in a name that which we call a rose by any other word would smell as sweet whether patients knew him as a coda or Egg Barre. Both names denote the exact same person and that person was a licensed physician. End quote. The case is Russell versus Dimensions Health, federal District Maryland. Timing is everything. This case concerns Tripophobia. If you're like me, you never heard of Tripophobia. I looked it up. It means fear of needles as in hypodermic needles. Bill Noel was a pharmacy manager at a Walmart. He had tripophobia, so Walmart got his attention when it announced that all pharmacy employees would have to get

Speaker 2: 5:57

Certified to administer shots. He asked for an exemption, and in July, 2016, he got a letter from Walmart granting the exemption, but specifically saying that it was subject to further review under certain conditions like a change in job description. Three months later in October, Walmart told Bill he had to get certified for giving shots. After all, bill quit and filed a suit claiming constructive discharge. The trial court dismissed Bill's case noting that A, the July letter said the exemption was subject to review. In the case of a change in job description, and B, the job description had been changed making shots an essential function on appeal. The Second Circuit unanimously vacated the dismissal. Why? Because the job description had not been changed until November the month after the constructive discharge. It was improper for the trial court to consider the November job description in addressing a constructive discharge that occurred a month earlier when the July exemption was still in effect. The case is Noel versus Walmart's stores East Second Circuit. Well, that's it for this month's edition of the Lighter Sight of Health Law. I hope you enjoyed it. Check your A H L A Weekly and Connections magazine for the next edition.