The Lighter Side of Health Law – April 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: 0:01

Hi, I'm Norm Taber, 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. A fate worse than death. Is there a penalty more severe than the death penalty? The Texas Supreme Court says yes there is. The court said so in reversing what it termed a quote Beyond death penalty sanction. The court said the term death penalty understated its severity, but the case didn't involve death row or even a prisoner after all. This is a healthcare podcast. It was a civil case concerning the sale of a home healthcare company. Becky and Alan Wilson sold the company to Altus, but instead of making the contract payments, Altus sued the Wilson's in federal court alleging fraud. The Wilson's intern sued Altus in state court and got a T R O prohibiting Altus from operating the company and requiring Altus to return all company assets. Then the Wilson's moved for a contempt citation and sanctions because Altus had violated the T R O by among other things, transferring company assets and patients. The trial court granted the motion and imposed what it termed death penalty sanctions. Namely Altus must pay the contract price along with the Wilson's attorney's fees and the cash Altus had transferred out of the company. The Court of appeals affirmed, but the Texas Supreme Court reversed ruling that the penalty was not a death penalty. It was worse than death. Why? Because in effect, the Wilson's got to keep the company and still get the purchase price. They were better off than if they had won the case on the merits, all based on A T R O issued without a hearing. It's good to know that at least in Texas, no matter how badly you lose a case, you won't have to face a fate worse than death. The case is Altas versus Wilson, Texas Supreme Court, the imaginary lawsuit. All of us know about imaginary friends. Some of us had them as kids. Some of us may still have them, and we can envision a lawyer making up an imaginary client maybe to impress somebody. But Illinois attorney Michael Graff went one better. He had an imaginary lawsuit, one that lasted five years at least. That's what the attorney disciplinary commission alleges. Pauline Erdman hired Michael to represent her in a wrongful death action against the hospital where a husband was treated for five years. Michael met with Pauline in person and gave her regular email updates on the progress of the case, including settlement offers of up to$100,000. The only problem was that the lawsuit was imaginary. Michael made it up, he never filed suit, and now five years after Pauline's husband's death, the wrongful death suit is barred. Pauline still has a malpractice case. Only it's against Michael, not the hospital. If it quacks like a doc, internist and dermatologist, Dr. Edward Tobin claimed he could successfully treat Alzheimer's and other brain issues with a spinal injection. Yale based neurologist,

Speaker 2: 2:59

Steven Novella didn't believe it and said so in a blog post calling Tobin X's Institute of Neurological Recovery, a quote, one man Institute in Florida, which he called a quote, very quack friendly state Tobin X two for libel and other wrongs, including false advertising. Under the act, novella posted another blog calling Tobin Neck sued an attempt to shut down free speech. Tobin X sued again this time, seeking an order, shutting the blog post down. Over time, Tobin Neck added various theories and defendants including Yale University, all the while losing on all his claims. The trial court granted novella's motion to require Tobin Neck to reimburse him$269,000 in attorney's fees, mostly relating to Tobin's LA Act claims that act allows the award of attorney's fees for the winning party. In quote, exceptional cases, Tobin appealed to the 11th circuit noting that the circuit had never allowed attorney's fees, excepting cases of fraud or bad faith. But the 11th Circuit affirmed the award ruling that it was enough that novella had shown that the case brought by Tobin Neck stands out from others end in terms of the weakness of Tobin Neck's case and the way he litigated it. So Tobin Neck, having already lost all the claims he had asserted since Dr. Novella said he lives in a quack friendly state, must now pay novella's legal bills. The case is Tobin versus Novella. 11th Circuit. The case of the heartless cardiologist, pediatric cardiologist, Eduardo Montana found a surefire way to get more patients and make more money. He had contacts at a jury and pharmaceuticals, a company that sells a cholesterol drug that can cost$250,000 a year. He sent them copies of his teenage patient's medical records and he gave them his computer password so they could log in at their leisure and view the medical records of hundreds of pediatric patients. One email said quote, by the way, I am sending you this from my personal email, because of the patient info followed by a smiley face, Gerian used the information to target children with heart conditions, including children who did not have the ultra rare condition the drug is approved for. These sound like the kind of people who used the law and sprinkler to keep trick ort treaters away. Eduardo was convicted of wrongful disclosure of individually identifiable health information and awaits sentencing. The case is US versus Montana, US District of Massachusetts on the town with Mike Anesthesia. Mike Anesthesia lived the high life wind and dined at dinners costing as much as$450 per person. But Mike didn't have to pay heart pump maker. A biomed picked up the tab. That's what we learned from the whistleblower case. A biomed recently settled with the Department of Justice. Mike Anesthesia didn't have to sign the settlement. That's because Mike Anesthesia is a fictitious name. A biomed made it up to avoid revealing his last name.

Speaker 3: 5:57

Why hide the last names of doctors? Maybe because the whining and dining was part of an alleged kickback scheme. In addition to hiding the doctor's names, a biome allegedly also inflated the number of people at dinners. You see, if you show three times as many doctors as were actually there, then$450 ahead becomes$150. Why would a biomed shall out$450 ahead to entertain doctors? Maybe because a single pump can cost over$20,000. It all came to light after a whistleblower of Max Bennett filed a false claims action revealing the illegal kickbacks. A biomed has to pay$3.1 million. Max gets over half a million. The case is US xra l Bennett versus Biomed Federal District Massachusetts. 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.