The Lighter Side of Health Law – August 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: 0:00

Hi, I'm Norm Tablo, host of the A H L A podcast series, the Lighter Side of Health Law, sponsored by Coker Group. I hope you enjoyed this month's edition. A Slave to the Telephone. Are you a slave to the telephone when it rings? Do you automatically drop everything to pick up a nurse at North Broward Hospital in Florida was that way. Her phone rang and she dropped everything to answer it. Sadly, one of the things she dropped was the patient she was helping to the bathroom. A patient designated as a fall risk. The patient sued the hospital arguing that it's negligence to drop a person you're supposed to be helping to the bathroom. The hospital responded, yeah, it's negligence, but it's not garden variety negligence. It's professional negligence. And since the plaintiff didn't follow the requirements of the med mal statute, the case should be dismissed. The trial court Sid, with the patient saying, come on, this is common sense, not professional judgment. You don't have to go to nursing school to know you shouldn't drop a patient. You're supposed to be supporting just because the phone rings, but a divided appellate court siding with the hospital. Yes, it's common sense the court said, but there's at least some professional judgment involved. Case dismissed. The case is North Broward Hospital District versus SLU District Court of Appeals Florida Surgeon saved by bad outcome. Here's a situation you don't often see. A patient sued or surgeon for malpractice and the surgeon won largely because the outcome of the procedures was so bad in Puerto Rico where the med mal statute of limitations is one year. Dr. Sanchez performed back surgery on Lou's colon twice in early 2014. She was worse after the surgeries than before. The procedures left her screaming from pain. Pain so bad she couldn't sleep. She swore she'd never used Dr. Sanchez again. In December, a new surgeon in Atlanta operated on her and she felt great. She asked the new surgeon to review her chart from the first two surgeries in September, 2016. He wrote a report sharply criticizing Dr. Sanchez's work. The next month. LU sued Dr. Sanchez for malpractice. In the 2014 procedures, the jury came back with three findings. A Dr. Sanchez committed malpractice and the damage was$250,000. B LU did not have the information necessary to sue before she got the report, which put her case within the one year statute a clear win for lose, right? Well no, because of the jury's third finding C. Luz could have had the knowledge necessary for the suit. Well over a year before filing if she had exercised due diligence. The court agreed with that third finding Lu and her family surely knew something was wrong long before receiving the Atlanta surgeon's report. After all, throughout 2014, Luz was screaming with pain and couldn't sleep. She and her family decided she needed surgery, but swore they had never let Dr. Sanchez near her again all in 2014. So Lu's claim was in fact barred by the statute of limitations,

Speaker 2: 2:58

Largely because the outcome of the procedures was so obviously bad. The case is Colon versus Sanchez, federal District of Puerto Rico a message that could save your life. I subscribe to dozens of legal newsletters and going through them each morning consumes a lot of time. Some mornings I don't find anything interesting, let alone useful, and I start to wonder whether the effort is worthwhile. But earlier this month, I came across something really useful, something that might even save my life. An article in modern healthcare told me what to do if I'm offered a ride by both a chiropractor and a masseuse. And the advice was straightforward. None of this on the one hand, but on the other hand stuff, the advice is that if possible I should decline both offers. Why? Because both groups, chiropractors, and masseuses, are truly terrible drivers according to a new insurance industry study. But the article advises if I must choose, I should pick masseuses because they are slightly less terrible than chiropractors. And the article, like a good lawyer didn't stop at telling me what not to do. It went on to tell me who could drive me safely. The answer is postmasters. They are the safest profession for driving with about half the violations of chiropractors and masseuses. In a sense though, the article is a case of the pot calling the cattle black because it was written by a journalist. And according to the same study, journalists are just about tied with masseuses for bad driving records. Look, before you leap into federal court, DEA investigator Kimberly Brill and d OJ attorney Linda Marx took the lead in indicting Dr. Elias Caris for violating the Controlled Substances Act by approving online requests for the drug Fiora set without a physician patient relationship. Halfway through the trial, the government dropped the Controlled Substances Act charges. Why? Well, when somebody finally got around to checking the controlled substances list, they found that Fiora said was not on it. So Dr. Carcas was distributing a non-con controlled substance, which of course doesn't violate the Controlled Substances Act. While you're wondering why the government would charge someone with distributing a controlled substance without first verifying that the substance was controlled, here's another thing to wonder about. Why would Dr. KCA retaliate? By suing Brill, a Minnesota resident and marks a DC resident in a federal accordion, Pennsylvania, the court dismissed the case for lack of jurisdiction adding that even if it had jurisdiction, it would dismiss for failure to state a claim. The case is Carcas versus Marks Eastern District, Pennsylvania fighting over the spoils or lawyers behaving badly. A messy court battle has arisen from alleged medical malpractice at Pittsburgh Children's Hospital. Is it between the family and the hospital? No. The family and the hospital settled the case amicably. The messy court battle is between the two small law firms serving as co-counsel for the family. They're fighting over splitting the contingency fee from the settlement. Harry Cohen

Speaker 3: 5:57

Agreed to represent the family and entered into a contingency fee arrangement. Then he got a call from his longtime friend, but now former friend Carrie Lewis saying his own three lawyer firm had been retained for the same case. Harry and Carrie agreed to split any fee, 50 50 being friends at the time, they didn't see the need to put the Harry Carry agreement in writing. Then Harry's sister-in-law partner Mary, settled the case for$4.25 million without notifying Harry, and she refused to honor the fee sharing agreement, reasoning that it was a Harry Carry agreement, not a Harry Carry Mary agreement. Harry sued Carry and Mary and their law firm for his share of the fee. Carrie and Mary argued they couldn't be sued individually for a contract entered into by their firm. The judge said, of course they could be sued. They were two-thirds of the firm in Pennsylvania. A fee sharing arrangement isn't valid unless the clients consented. Harry said they did. Carrie and Mary said they didn't clearly exasperated the judge recommended mediation among Harry Carry and Mary Harry and Mary say, okay, Carrie says, no. The case is Cohen versus Lewis Allegheny. Court of Common Plea. Well, that's it for this month 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.