The Lighter Side of Health Law – June 2018

AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments.

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 speaking of health law, where we focus on the lighter side of health law. I hope you enjoy this month's edition for a want of a nail. Remember the proverb that begins for a want of a nail and ends up showing that because of the missing horseshoe nail, a kingdom was lost everyone to whether the king had a valid claim against the blacksmith responsible for the missing nail. This comes to mind in reading about a lawsuit alleging that the negligence of a Dallas Hospital cost a bridal shop a thousand miles away to go out of business becoming attractions Bridal Shop SU to Dallas Hospital on the theory that if only the hospital had taken the precautions recommended by the cdc, then when Thomas Duncan was admitted after being infected by the Ebola virus nurse, Amber Vincent would not have become infected from caring for him. And then Amber's visit to the bridal shop in Akron, Ohio to buy a dress wouldn't have caused health authorities to close the shop for cleaning. And if that hadn't happened, then the shop after reopening would not have been cursed with a stigma that drove it out of business. Can the shop's lawsuit stand up to the hospital's motion to dismiss? No, according to the Texas Court of Appeals, but maybe not for the reason you think the case was dismissed with prejudice and the shop was saddled with the hospital's attorney's fees because the negligence it alleged was medical negligence and the shop failed to file an expert's report as required by the Texas Med Mouse statute. The case is Texas Health Resources versus coming attractions, bridal and formal Texas Court of Appeals. Be careful what you asked for. Divina. Porter sued a hospital because it gave her the information she repeatedly asked for. When Divinia checked in for tubal removal surgery, she asked the staff not to share the details of her surgery with her family. During the procedure, the surgeon discovered a mask that required a hysterectomy whether father and uncle in the room, Divinia asked a nurse about her bleeding pain and her catheter. The nurse said all that was normal after a hysterectomy. That's when Divinia first learned she'd had a hysterectomy. She told her father and uncle, the nurse didn't know what she was talking about, so the nurse repeated you've had a hysterectomy the next day, whether father and uncle in the room, Divinia again asked about the pain and was again told it was normal. After a hysterectomy, dya sued the hospital for disclosing the hysterectomy to her father and uncle. The hospital moved to dismiss pointing out that the nurse was simply responding to questions Divinia asked in front of her father and uncle. The court granted the motion ruling that Divinia had waived any right to privacy by asking the questions. Minnesota Court of Appeals affirmed emphasizing the absurdity of arguing that a nurse shouldn't answer a patient's questions about her treatment. The case is Porter versus United Hospital, Minnesota Court of Appeals a judicial Catch 22. Pharmacist Anthony Mims sued CV S for defamation because a CV S employee told a customer that Anthony was under d e investigation relying on truth as a defense, CVS offered two pieces of documentary evidence. First, there was the DEA subpoena served on the clinic where Anthony used to work specifically seeking records of Anthony's patients, including patients who died or were convicted of drug charges. Second, there was a criminal trial transcript in which an HHS agent testified that he and a DEA agent had in fact investigated Anthony. Sure. Fire winners, right? Well, not according to the trial court, which excluded both documents the court's reasoning. Well, the subpoena of Anthony's patient records was issued after Anthony left the clinic. Second, and this is the case. 22. The criminal trial transcript showing Anthony was under DEA investigation might prejudice the jury against Anthony. You heard correctly CVS has to prove Anthony was under DEA investigation but can't introduce a trial transcript proving Anthony was under DEA investigation because it might prejudice the jury against him. You can't make this stuff up. No one to the jury awarded Anthony a million dollars. Happily for cvs. The seventh circuit reversed the trial court's evidentiary rulings and ordered a new trial. The case is MIMS versus CVS Seventh Circuit. Don't take it Sitting down. When the hospital's HR department rejected Judy Shotwell request for accommodation due to leg surgery, she did not take the decision sitting down that turned out to be the problem and why she lost her job and her lawsuit. Judy underwent multiple surgeries that made her miss several months of work. When her absences exceeded leave policy, she had to quit or take furlough status. She chose furlough. Later she presented a letter from her doctor saying she could work if she did it from a wheelchair, but HR rejected her request and she was terminated. Judy sued under the ADA for failure to accommodate discrimination and retaliation. The hospital won summary judgment on every count. Why? Because Judy knew all along that the accommodation she requested to work from a wheelchair wasn't reasonable. It wouldn't work because Judy was unable to perform any job that required much sitting. In fact, she had applied for long-term disability claiming she was unable to set for any length of time. So Judy hadn't requested the wheelchair accommodation in good faith and hadn't been denied accommodation. That was reasonable. One lesson is the danger of taking conflicting positions in different procedures like insisting in a lawsuit that you can work from a chair while insisting to your disability insurer that you can't. The case is shot well versus Regional West Medical Center eighth Circuit, walking under the influence. You don't hear about walking under the influence the way you hear about driving under the influence, but walking under the influence recently cost a Wisconsin hospital over half a million dollars. Brendan Kane spent Christmas evening drinking with friends in bars returning to his sister's home. He was staggering a little. His blood alcohol level would later prove to be three times the DUI limit heading to the basement. Brennan lost his balance on the first step, fell and landed unconscious at the foot of the stairs. Rushed to the hospital. He died from his injuries, but not before receiving$560,000 worth of trauma services. When the hospital sought reimbursement from Brennan's Health Plan, the claim was denied based on an exclusion for injury sustained as a result of alcohol use. The hospital sued leveling several arguments. The most interesting was a variation on the butt officer. I can hold my liquor defense. Namely that through heavy chronic

Speaker 2: 5:56

Drinking, Brennan had built up a tolerance to liquor and probably wasn't all that impaired. The hospital's best argument was that the exclusion should apply only when alcohol was the sole cause of the accident. But the court upheld the insurer's position that the exclusion applied whenever alcohol was a substantial cause of the injury. The case, university of Wisconsin Hospital versus Air Products and Chemicals, Western District Wisconsin, not going the extra mile but charging for it. Have you ever been tempted to fudge your mileage expenses? Texas-based best care lab gave into the temptation to fudge its Medicare mileage expenses and in a big way. How big? Try$11 million in mileage overcharges. How do you overcharge Medicare or anyone else?$11 million in mileage? Well, if you're a lab, you charge Medicare$1 for every mile of specimen travels whether or not an employee travels with it. So if your employee drives 10 miles to the airport to drop off a specimen to be flown 500 miles, you charge Medicare$510 for mileage. And you use this same approach even if the employee transports multiple specimens in one trip. So if there were 10 specimens in that one trip, you'd charge Medicare$5,100 in mileage for that trip to the airport. The gravy train ended when a plaintiff filed a false claims action. Best care not only has to repay the overcharge, hit with the statute's treble damages provision, it owes the government 31 million. The case is US Xra Drummond versus Best Care Lab, Southern District of Texas. Well that's it for this month's edition of the A H L A podcast series. Speaking of health law, I hope you enjoyed it. Check your A H L A Weekly and Connections magazine for the next edition of Speaking of Health Law.