The Lighter Side of Health Law - June 2020

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: 0:14

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Speaker 2: 0:32

Hi, I'm Norm Taber with this month's edition of the Lighter Side of Health Law Carry on Carrie. Last month we discussed the Texas man who objected to the whole food sign requiring a mask. So he posted a notice that in lieu of a mask, he would present his gun range score to the security guard. This month, it's Vermont attorney Carrie Legis objecting to the sign in Butcher's Harvest store requiring social distancing. Carrie complained loudly and when that didn't work, she tried knocking the sign down. When that didn't work, she pulled a gun on the clerk. Apparently, Carrie has a carry permit. The clerk knowing a little about law himself, called the police who arrested Carrie and charged her with reckless endangerment. She's pleaded not guilty, claiming that she didn't even have a gun learning of the criminal charge. The disciplinary counsel of the Vermont Bar petition for an immediate suspension of Carrie's law license. But apparently Carrie doesn't like disciplinary proceedings any more than social distancing signs. She's refused to respond. That's why the Vermont Supreme Court has entered an order immediately suspending carrie's license to practice. The case is Inri Legis Vermont Supreme Court given goodies a bad name. Dr. Andy Berkowitz handed out so-called goodie bags to his patients, but maybe they should have been called batty bags because they were overflowing with oxycodone and other medically unnecessary drugs, and there was a catch to Dr. Andy's larges. You could only get a goodie bag if Dr. Andy could prescribe other drugs and services that you didn't need and then charge them to the federal government. Aas Dr. Andy got caught goodie bag handed and now must pay a 2.8 million fine and be excluded from Medicare and Medicaid for the next 20 years for violating the False Claims Act. The case is US versus Berkowitz, Eastern District Pennsylvania. Riddle of the month. Here's the riddle of the month for June, why did the nursing home insist that a resident's death was a case of medical malpractice and know the answer has nothing to do with a cap on medical malpractice damages? That's usually the answer, but not in this case. Anna Bernardo was a frail resident of an Arizona nursing home. A nursing assistant was pushing her in a wheelchair when Anna's foot got tangled in a loose mattress court. Anna fell head first from the wheelchair and died from the resulting injuries. When Anna's son, Michael sued the nursing home, the home insisted that the fall was a case of medical malpractice. Why? Because when Anna was admitted to the home, Michael signed a mandatory arbitration agreement that covered, quote, any dispute as to medical malpractice. The home insisted that Anna's fall was a case of medical malpractice, so the case should be dismissed from state court and moved to arbitration. But the Arizona Court of Appeals agreed with Michael. This incident was like a slip and fall in a hospital. It alleges ordinary negligence, not medical negligence. The case is Bernardo versus Windsor. Palm Valley, Arizona Court of Appeals too big to jail. Just as some banks are too big to fail, some health providers are too big or at least too necessary to jail. Take Mega Oncology Group, Florida Cancer Specialists or fcs, FCS admits that it divvy up cancer business in southwest Florida with another oncology group by staying out of the radiation oncology business in return for the other group, staying out of the medical oncology business. This arrangement is so blatantly illegal under the Sherman Antitrust Act that when charged FCS had no alternative except to confess and agreed to pay a whopping 100 million fine. But SCS is in a sense too big to jail. That is if the DOJ prosecuted FCS would be convicted, that would mean that FCS and likely the other party to the crime would be mandatorily excluded from Medicare for five years, leaving a huge number of Floridians without cancer care, in addition to the fine fcs has agreed to straighten up and fly right overly blind justice. If you don't think justice is blind, listen to this case. Bill Furrows wife has Alzheimer's and resides in a Minnesota nursing home. A nurse's aid was angry at her for allegedly setting off the fire alarm, which required the aid to call 9 1 1 and cancel it the aid, ved or anger by posting a photo of the patient on her personal media social page with a caption calling the patient an obscene name and relating the fire alarm incident. The aid was also in the photo dressed in scrubs. Minnesota, like most states, prohibits the unauthorized release of health records. Bill sued the nursing home on his wife's behalf for revealing that she's a nursing home patient. The court ruled against Bill and in favor of the nursing home. The court's reasoning, although the aid is wearing scrubs in the photo, nothing identifies her as working in a nursing home. That means that the photo did not reveal that Bill's wife is a nursing home patient. What the court does not acknowledge is that in all likelihood, the aid social media page shows A, that she's a nursing home aide, and B, the name of the nursing home. So bingo. Everyone who sees the post knows that the woman in the photo with the tasteless caption is a patient in Madonna Summit Nursing Home in Byron, Minnesota, and that she allegedly set off a false fire alarm forcing the aid to undertake the incredibly burdensome act of dialing 9 1 1 to cancel the alarm. Yes, justice is blind. All right, but fortunately, this nursing home is not it fired the aid. The case is furlough versus Madonna Summit of Byron Minnesota Court of Appeals. Sometimes that's not what you say, but how you say it. This is for health lawyers who find themselves in court. Attorney Todd Bank was physically removed from a federal courtroom after saying to a judge on the panel, I see you've read the briefs thoroughly. It wasn't the content of the statement that got Todd in trouble. It was the way he said it. In oral argument, Todd said his client was injured by being required to submit a good character affidavit. A judge innocently asked, what's the injury? Todd thought he had made that clear in his brief, so instead of answering the question, he responded, are you serious, judge? I don't know what to say. Visibly angry. The judge told Todd to sit down. That's when Todd oozing sarcasm said under his breath. See, you've read the briefs thoroughly. One of the judges declared Todd's behavior inappropriate, disrespectful, and discourteous. When Todd rose to speak after the government's case, the judge said he had waived rebutting was excused. When he didn't leave, a judge directed security to escort him out of the courtroom. Todd's behavior raises two questions. The first is, of course, why in the world would a lawyer be so blatantly disrespectful to a judge hearing his case? The second is, even if a lawyer thinks he's made his point crystal clear in his brief, why pass up a chance to make the point again in front of the panel, the case is Doyle versus Palmer Second Circuit. Well, that's it for this must edition of the Lighter Side of Health Law. I hope you enjoyed it. Check your a H l Weekly and Connections Magazine for the next edition.