The Lighter Side of Health Law – January 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

Welcome to Speaking of Health Law. Hi, this is Norm Taber, host of ALA's new podcast series. The series is called Speaking of Health Law, but the subtitle may be more descriptive. It's the lighter side of health law, and that light side is what we want to emphasize. We have a theory that while health law may generally be serious and sometimes even boring, if you pay close attention, you can often find a development that's interesting, quirky, or even downright funny. My plan is to gather up these developments, record a podcast on each of them, and then present the podcasts on a monthly basis. Okay, so who am I and why am I doing this? Well, as I said at the outset, I'm Norm Taber. I'm a retired partner. Actually, I prefer the term recovering partner with a large law firm where I specialized for many years in health law. In addition, I serve for a long time as in-house general counsel of a major hospital system. And by the way, for a lawyer working in a hospital is a great gig. Just think of it, the ambulance has come to you, but I digress. As a recovering lawyer, I have a lot of time on my hands and I like to ride and talk about developments in health law, especially developments that entertain. That's what this series is intended to do. I hope you enjoy it. The You can't make This Up award from time to time in development and health law confirms the adage that truth is stranger than fiction. That's why we hand out the You can't make this up award for real life developments that seem to defy the imagination. The 2017 award goes to the Centers for Medicare and Medicaid Services. October three, announcement withdrawing a proposed rule that would've required artificial limb providers and suppliers to meet accreditation requirements. According to the announcement, withdrawing the rule, the rule was withdrawn because of the cost and time burdens. The rule would create for many providers and suppliers. And to quote, yes, you heard that correctly. The artificial limb rule was withdrawn because it would've cost the artificial limb industry at arm and lake if a tree falls in the forest. It was the philosopher Bishop Barkley, who posed the rhetorical question, if a tree falls in the forest and no one hears it, does it make a sound? The judge in pediatric nephrology associates versus Variety Children's Hospital didn't mention either the bishop or the tree, but he used the same approach to dispose of a case brought by a Florida nephrology partnership against a former partner and the hospital where they all worked. The trouble began when the hospital started its own nephrology group and hired one of the partners, Dr. Ramirez, away from the partnership when the remaining partners refused to join the hospital's new group. The hospital with the help of Dr. Ramirez posted

Speaker 2: 2:59

An ad to recruit nephrologists. The partnership filed a federal lawsuit alleging among other things that the ad violated the LAN Act, a federal law that prohibits false advertising. So what was the falsehood? Well, for one thing, the AD included a statement that the nephrology section had over 8,000 visits a year, and over 20 dialysis patients under the direction of Dr. Ramirez. The partnership argued that those were the numbers for the whole partnership, not just Dr. Ramirez. So the ad was misleading. The court said that it couldn't decide whether the statements were true or false, but what it could and did decide was that there was no evidence that any consumers even saw the ad, let alone were deceived by it. And just as a falling tree makes no sound, if there's no one around to hear it, a false statement doesn't violate the Landam Act if there's no consumer around to be deceived by it. The court gave the defendant summary judgment on the Lanam Act claim and dismissed the remaining claims because they were state rather than federal claims. The case is pediatric nephrology Associates versus Variety, children's Hospital, Southern District of Florida 2017. Finally, a definition of love at long last, we have a definition of love, an official definition, and no, it didn't come from Shakespeare or Khal Giran or Barry Manilow. It came from a federal agency, the United States Food and Drug Administration. How did the FDA get involved in defining love? Well, strangely enough, the FDA was angry with Nashoba Brook Bakery for claiming that it baked with love. The bakery was required to list the ingredients of its granola bars, and along with rolled oats and shredded coconut, it included love. When the FDA read the list of ingredients, it fired off warning letter number 5 3 2 2 36, ordering the bakery to delete love from its list of ingredients within 15 days or face the consequences. What's wrong with listing love? You may ask. Well, the warning letter explained what's wrong is that quote, love is not a common or usual name of an ingredient in quote. So it can't be included in a list of ingredients. You're wondering, if it's not an ingredient, then what is it? Well, wonder no more. The FDA being a full service agency supplied the answer right there in the warning letter. Quote, love is intervening material, end quote. And why is love intervening material? Why? Because, quote, it is not part of the common or usual name of the ingredient and quote. So there you have it, the official definition of love certified by the F d a. And you know what? It really works. Try it. Think of Whitney Houston singing. I Will Always Intervening Material. You or the Captain Anton Neil's intervening material will keep us together. Or the Beatles classic. Can't buy me intervening material. Thank you. F fda, the unspeakable. I wanna do something risky here. I wanna use a voice recording to explain how dangerous it can be to rely on the spoken rather than written word. Bear with me. We all know that when it comes to contracts, it's safer to put it in writing. What's the cliche? A verbal contract is not worth a paper it's written on, but the principle is not limited to contracts. A recent Louisiana Supreme Court opinion shows that it comes up in criminal law too. And in criminal law, the difference between the written and spoken word can be the difference between freedom and prison. Just ask Warren dme, that's D E M E S M E. Warren was being questioned by the police in connection with two assaults. He denied one of the assaults, but admitted the other. But before the admission, he said, and the operative word here is said something about getting a lawyer. Warren says he asked for a lawyer, but according to the prosecution, Warren said something ambiguous or nonsensical, or both so precisely. What did Warren say? Well, according to the transcript, he said, quote, why don't you just give me a lawyer dog end quote. Let me repeat that. Why don't you just give me a lawyer dog? The prosecution says that was not a request for an attorney. It was a request for a lawyer dog, and there's no such thing as a lawyer dog. So the police had every right to continue to question Warren and ignore his request for a lawyer. Dog. Warren, on the other hand, insists he was asking the questioner whom he addressed as dog to get him a lawyer. In other words, there's a comma between lawyer and dog. So it's not, give me a lawyer, dog, it's give me a lawyer dog. Well, Warren was in a tough spot because you can't say a comma. You can write a comma, but you can't say a. And because of the unspoken, you might say the unspeakable. The Louisiana Supreme Court refused to hear Warren's appeal of the denial of his motion to suppress that admission of the assault. Justice Criton said Warren's statement was ambiguous, and an ambiguous reference to an attorney does not require the police to stop the questioning. The case is Louisiana versus D Maim Louisiana Supreme Court 2017. 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 HLA Weekly for the next edition of Speaking of Health Law.