The Lighter Side of Health Law - October 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 Taber with this must edition of the Lighter Side of Health Law, brought to you by Coer Group, a national healthcare advisory firm working with hospitals and physician groups to develop customized solutions in five main service areas, strategy, operations, finance, technology, and compliance. The Coer Group mission is to customize and approach for each client that ensures strategic differentiation in the marketplace and the achievement of every goal across all performance areas. Through principle to professional consulting. Coco Group assists healthcare providers in their pursuit of a sound business model and an enhanced patient experience. Coco group's advisors have the experience and creativity to find the right solution for any market and healthcare entity healthcare. Believe it or not, from time to time, I come across an item in health news that I'm almost afraid to share with you. Afraid because it's so hard to believe. I call it healthcare. Believe it or not, this month's item comes from a newly released study by researchers at the University of Colorado Medical Campus, and Aurora researchers surveyed 588 pediatricians and family physicians on recommending H P V vaccination. The study reveals that when doctors strongly recommend the vaccination, patients are more likely to agree to it than if doctors do not strongly recommend it. So there you have it. A Doctor's strong recommendation is more effective than a doctor's weak recommendation, believe it or not, leaving contract terms up in the air. This case could be a parable for the folley of entering into a contract that leaves a key provision up in the air. Many of the pleadings are under seal, but the public court documents in this case, tell this story. Air Evac e EMS entered into a contract with health insurer Medical Mutual of Ohio, but the contract did not specify a price. Over the years, air Evac flew 314 patients who were insured by Medical Mutual Air Evac sent medical mutual bills totaling over 5 million bills that were double or triple the air ambulance bills that Medical Mutual usually receives. AirVac sued Medical Mutual for the$5 million in State court. Medical Mutual made a federal case of it going to a district court for declaratory judgment that it owed nothing, not just that it did not owe the excess over the reasonable amount, but that it owed nothing. The jury found that A, there was a contract between Air Evac and Medical Mutual, but B Medical Mutual had not agreed to pay air Eva's charges. And C, are you sitting down Medical Mutual's refusal to pay. Even the reasonable value of the flights was not a breach of contract. That means that Medical Mutual does not have to pay anything for the 314 air ambulance trips. The moral of this parable is that when an air ambulance company enters into a contract, it should not leave the question of price up in the air. The case is Medical Mutual of Ohio versus Air Evac ems,

Speaker 2: 2:58

Northern District Ohio. Give them an inch. You can't read the FDA warning letter to the maker of Bounder power wheelchairs. Without thinking of the adage. Give them an inch and they'll take a mile. According to the letter, all that bounder sought and received approval for was a power wheelchair designed to quote, provide mobility to individuals restricted to the sitting position. End Bounder says that it has not made any improvements or modifications to the original chair that would affect safety or require new FDA approval. But when the FDA staff visited the Bounder website, they found that Bounder now promises, quote, lifting the user, tilting the user, and bringing the user to a standing position end. They also found a video ting the quote, bounder off-road package showing a gutsy senior citizen plowing a bounder wheelchair through rough terrain, sand and snow. The warning letter concludes that morphing a garden variety wheelchair into an off-road ATV does in fact raise safety concerns that require new application for approval. There's no truth to the rumor that the FDA feared that gangs of retirees mounted on bounder ATVs and calling themselves seniors from hell would terrorize retirement homes across the country, a nurse, a lawyer, and a whistleblower walk into a bar. Actually, it was a courtroom, not a bar, and the nurse, the lawyer, and the whistleblower were all the same person. That person, Cecil Portilla sued her former employer. Maxim Health Services on several theories, including wrongful discharge. Cecil's performance as her own attorney was no better than her performance as maxim's director of clinical services had been, or her performance as a self-styled quote, paradigmatic whistleblower. What about that wrongful discharge? Well, it turns out that Maxim did not discharge her at all, let alone wrongfully. She was scheduled for a meeting with her supervisor to discuss her job performance, but when she saw the supervisor parking her car, she sneaked out the back door and never returned. It was a classic case of you can't fire her. She quit, asked for Cecil's claim that Maxim fired her for her paradigmatic whistle blowing Maxim had proof that it had properly investigated and responded to every one of Cecil's reports. The court threw out Cecil's case awarding Maxim summary judgment and generally expressing bafflement at Cecil's pleadings as well as her theories. The case is Portilla versus Maxim Health Services, New Jersey Appellate Division. One more thing I never knew. I'm constantly amazed at all the things I never knew. Here's a recent example. Physician David Que, that's Q U y, has been indicted for writing opioid prescriptions in the names of his office workers and their children, and then either using the opioids himself or selling them. So of course, the indictment is for conspiracy to illegally distribute a

Speaker 3: 5:57

Controlled substance that's count one and actual illegal distribution of a controlled substance. That's count two, but there's also a count three. Can you guess what it's for? I couldn't. It's for identity theft 18 USC 10 28. When the doctor wrote prescriptions in the names of people he knew were not the intended users, he was stealing their identities as if anyone needed another reason not to traffic in illegal drugs. The case is US versus Que Western District, Oklahoma Nurses go. Mental nurses across the country are going mental, or should I say dental? Why? Because when it came time for the National Institutes of Health, the NIH to name an interim director of the National Institute of Nursing Research, the nod went to a dentist. That's right. The head of the National Institute of Nursing Research is not a nurse but a dentist. Not unexpectedly. The nation's nurses were incensed. The reaction of the president of the Illinois Nurses Association was typical quote, we need to have one of our own head up. That organization. End quote. The NIH response only made things worse. Heck said. The NIH spokesman. We conducted a nationwide search for a qualified leader in nursing research and couldn't find one. Well, that's it for this month 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.