The Lighter Side of Health Law – November 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.

AHLA's Health Law Daily Podcast Is Here!

AHLA's popular Health Law Daily email newsletter is now a daily podcast, exclusively for AHLA Premium members. Get all your health law news from the major media outlets on this new podcast! To subscribe and add this private podcast feed to your podcast app, go to americanhealthlaw.org/dailypodcast.

Transcript

Speaker 1: 0:00

<silence>

Speaker 2: 0:07

This episode of AHLA speaking of health law is brought to you by AHLA members and donors like you. For more information, visit american health law.org.

Speaker 3: 0:21

Hi, I am Norm Tablo with this month's edition of the Lighter Side of Health Law. Better double check the dosage. There's certain things you just don't wanna know, that the airplane pilot has seizures, that the surgeon gets the shakes, that the judge is deaf. Well add one more thing to the list that pharmacists are not good at measuring things. It turns out that in both 2021 and 22, the National Association of Boards of Pharmacy, miss scored hundreds of pharmacy license exams telling hundreds of exam takers that they'd failed when they'd actually passed, or that they'd passed when they'd actually failed. One result for the former group, the ones who passed but were told they'd failed, was losing jobs, internships, and peace of mind. Last month, the federal judge approved an $832,000 settlement of the matter. My question is, if we can't trust pharmacists to grade an exam, they wrote, how can we trust them to fill prescriptions written by doctors they've never met? The case is Glassby versus National Association of Boards of Pharmacy, Northern District, Illinois. It takes a professional poor EMT. Catherine McDermott had the bad luck to be on call when her ambulance service was assigned to pick up a psych patient. Cortez Peters at the University of Chicago Med Center . I call her poor Catherine , because Cortez wasn't just any old psych patient. He was violent, very violent. That's why the hospital personnel had put him in restraints only. They didn't do a very good job with the restraints. During the ambulance ride, Cortez unfastened the restraints and beat Catherine nearly to death. When Catherine sued the hospital for negligence, her case was dismissed. Why? Because the court ruled what Catherine was alleging wasn't really negligence. It was medical malpractice. Why? Because restraining a violent patient is a matter of medical judgment requiring medical skill. Since Catherine was therefore alleging medical malpractice, she was required to submit a medical expert affidavit and report on how to restrain a violent patient, something she had not done. Case dismissed. The case is or was McDermott versus Peters, Illinois Appeals Court, the Grinch who stole orange juice. Well, he hasn't exactly stolen it yet, but plaintiff Gary Reynolds has sued Minute Maid for claiming their OJ is, quote , good for you and quote , part of a healthy diet. But he doesn't stop there. He claims that all fruit juice is bad for you because of the sugar content. He wants an injunction to stop minute made from using the phrases good for you and part of a healthy diet. So far in the early stages of the case, the federal court has issued a split decision. The court dismissed the claim that good for you is misleading, ruling that it's like a headline and the list of nutrients that follow It could be read to support it, but the plaintiff's claim about part of a healthy, balanced diet survived so minute made must show that it either meets the threshold of 10% of the daily recommended amount of vitamin C before fortification or is fortified under a regulatory provision. Still, the judge denied the plaintiff an injunction. Why? Because the plaintiff alleges fruit chooses never good for you. So he can't be misled by the claim that the OJ is part of a healthy diet. The case is Reynolds versus Coca-Cola. Yes. Minute made is really Coke in a maid uniform, Northern District, California. The tale of the telltale text trail, it's generally best to get it in writing, but not always. Here's an example. George Darrow, former salesman for medical device company. NuVasive sued the company for disability, claiming his throat cancer was caused by radiation exposure on the job. During a deposition, a NuVasive employee suddenly changed her testimony. George's attorney claimed it was because of improper coaching by the NuVasive lawyer. NuVasive denied it, but it turned out there was not only coaching, but also a text trail to prove it. When George moved for sanctions against the attorney, NuVasive had only the kind of arguments you make when your back is truly against the wall. First, that the texts weren't sent during the deposition. They were sent during a break in the deposition. Second, there's no need for sanctions because the attorney who sent the text is retiring. Next time you're considering improper coaching of a witness, think about whether you really want to put it in writing. The case is Darrow versus NuVasive, Southern District of Florida ever taken a lie detector test. Have you ever taken a lie detector test? Better? Think carefully before you answer, or you might accidentally tell a lie. For example, if you've applied for a job with CVS lately, you might have taken a lie detector test without knowing it. That's what Massachusetts resident, Brendan Bayer alleges in his class. Action. He says the automated application he filled out turns out to include AI enhanced software that the creator touts as incorporating lie detection. Brendan filed a class action suing CVS for subjecting applicants to lie detection without warning them. The judge denied CV S'S motion to dismiss. What's more she pointed out to Brendan that he had another claim. In addition to failure to warn , Massachusetts law makes it illegal to administer lie detector tests. Great respondent Brendan. We'll add that to our claim. The case is Baker versus CVS District of Massachusetts. Accidents will happen even to a psychiatrist on the Harvard faculty and just what accident befall Dr. Gustavo. Ken's well just that he accidentally overbuild Medicare and other insurance companies $11 million for psych services that never occurred. For example, he accidentally billed for 460 transcranial magnetic stimulation TMS treatments to his own wife. One patient decided not to undergo TMS, but Dr. Kenry accidentally billed the 55 sessions. Anyway, one young woman saw the good doctor just six times , but he accidentally billed for 54 visits and just for good measure, he accidentally billed her mother for 24 sessions on 384 different days. He billed more psych sessions than there are hours in the day. All told he accidentally submitted $11 million of bills for sessions that never occurred. How do we know it was all an accident? Why? Because that's what his lawyer argued at his fraud trial. He was just so darn busy. He didn't notice petty little billing errors like the ones I've mentioned. Alas , the cynical jurors of Massachusetts refused to believe that a doctor could accidentally over bill by $11 million and convicted him of fraud and obstruction. The case is US versus Ken's district of Massachusetts. Why auto insurance premiums are high? I never thought I'd side with an auto insurance company, but a case in New Jersey makes me at least a little sympathetic. First, a little background. New Jersey law provides protection for quote pedestrians injured by motor vehicles. Then back in the eighties, the New Jersey Supreme Court ruled that bicycle riders are pedestrians. Go figure. Well, now David GOCO claims that he too is a pedestrian, even though he was riding a motor powered scooter when he was hit. His argument, well, my motor scooter's motor is very low power, so I'm pretty much like a bicycle rider only with a little bit of motor power . The appellate court ruled against him . But now the state Supreme Court seems to wanna rethink the issue. It's granted a review of the decision. What do you bet that if he wins sports, car drivers will claim to be pedestrians because their cars are smaller than the others. The case is Geico versus progressive. Stick with imaginary friends. Here's a case proving that old-fashioned imaginary friends are better than a lot of high tech alternatives. 19 year old Ja Watt Chale was arrested for scaling the walls of Windsor Castle, armed with a high powered crossbow. He said he wanted to kill Queen Elizabeth in retaliation for a 1919 massacre in India. An investigation revealed that he had been egged on by someone called Saray who repeatedly told him how impressed she was that he was planning the assassination and that she was sure he could pull it off. Well, it turns out that Saray was not a real person and wasn't an imaginary person either. She was a chatbot on a then popular AI companion app that advertised itself as intended for quote erotic role play . And of course, in addition to egging him on, Saray left a computer record of all the young man's thousands of incriminating statements . So as I said, it's better to stick with old fashioned imaginary friends, even worse than she said. Here's something quirky about American law. Say a plaintiff accuses the defendant of bad behavior, but it turns out the behavior was even worse than the plaintiff said. Shouldn't that make the case easier for the plaintiff and worse for the defendant? You'd think so, but that's not necessarily the case. In fact, it might just be fatal to the plaintiff's case, enabling the defendant to get off Scot-free. Take this case. Tracy Kirkman's husband Chad killed himself. Tracy sued Rowan Regional Med Center alleging it was negligent in prematurely discharging Kirk and that that early discharge contributed to his death. The trial court granted the med center summary judgment ruling that it had immunity accepting cases of gross negligence. Traci responded Well, it was gross negligence for God's sake. The Appeals Court ruled against Traci saying, well, if the Med center was grossly negligent, you should have said so in the first place, but you didn't, and it's too late. Now, judgment for the Med Center affirmed. The case says Kirkman versus Rowan Regional Med Center , North Carolina Court of Appeals Complaint Department. My complaint today is the expression walking on eggshells. Not that we don't know what it means, but that it doesn't say what it means. It's sort of like the saying, don't let it fall between the cracks. That says the opposite of what it means because we do want it to fall between the cracks, otherwise it would fall in the cracks or through the cracks, which is what we don't want. But back to the eggshells, we know it means we're forced to be very, very careful because the situation is so delicate and we sure don't wanna break any eggs, and that's the problem. We don't wanna break any eggs, but the saying doesn't say we're walking on eggs. It says we're walking on egg shells. And who cares whether egg shells get broken? No one there. I've said it. If you have a complaint, send it to me. Well, that's it for this month's edition. I hope you liked it. I'll be back next month with another edition of the Lighter Side of Health Law .

Speaker 2: 10:33

Thank you for listening. If you enjoyed this episode, be sure to subscribe to AHLA speaking of health law wherever you get your podcasts. To learn more about AHLA and the educational resources available to the health law community, visit American health law.org.