The Lighter Side of Health Law – August 2021

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: 0:06

This episode of A H L A. Speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.

Speaker 2: 0:21

Hi, I'm Norm Taber with this one's edition of the Lighter Side of Health Law. Another reason to mask up from the Texas Department of Health Services comes a brand new reason why you may wanna wear a face mask. Monkeypox. Yes, I said monkeypox. A passenger returning to Texas from Nigeria via Atlanta has tested positive for monkeypox. The virus has also shown up in the uk, Israel, and Singapore. You're thinking, I can't catch it. I'll never go to Nigeria. But the flaw in that reasoning is that you can catch it via respiratory droplets. If the person next to you in line at Starbucks has it, you can catch it from the air he exhales. And unlike Coronavirus, monkeypox makes you ugly, at least for a while. No, it doesn't make you look like a monkey, but your lymph nodes swell up and you get widespread rash on your face and body. It's not a virus. You want a monkey around with assembly line prescriptions, Tennessee Nurse Kelly MacCallum had a crackerjack idea for bringing efficiency to the business of prescribing drugs. Taking her cue from Henry Ford's assembly line, Kelly pre-signed a prescription pad full of scripts and let the staff at convenient care clinic fill in the name of the patient, the controlled substance and the dosage. Unlike Henry Ford, she was not praised for her ingenuity. The state licensing board suspended her license. She might have avoided the suspension, except that the board already had their eye on her for being impaired at work, pounding the walls until her knuckles bled. Having a sexual relationship with a patient and ordering staff to withdraw$8,000 from the clinic's account so she could buy the patient a car informality has its limits. Federal magistrate Judge Andrew Edison of Texas has been around long enough to know that if you give lawyers an inch, they'll take a mile. So he was careful in laying out the terms of a Zoom hearing. He wrote, quote, you are not required to wear formal courtroom attire. But he added quote, you are however required to wear clothes. You can't make this stuff up. The case is Texas versus Biden. Southern District, Texas, saved by promiscuous honeybees, Len Moore went to Trader Joe's looking for a special kind of honey Manuka honey. It's made by bees from the blossom of the Manuka bush in Australia and New Zealand. In the honey aisle, she found a jar of honey labeled Trader Joe's 100% Manuka honey. She bought it when it turned out that the Manuka portion of the honey was 57% and not a hundred percent. She sued Trader Joe's for false advertising. The court turned to the FDA's honey guidelines. Yes, the FDA has honey guidelines and found that honey can be labeled with the name of a blossom. If it's quote, the chief floral source of the honey. Well, 57% may not be a hundred percent, but it's still high enough to make it the chief source. Besides that, the court noted honey can never be 100% anything because some bees in the hive are always going to suck different blossoms. At some point you can't stop them. So Trader Joe's was saved in part by those promiscuous honeybees. The case is more versus Trader Joe's Ninth Circuit, sometimes Big Brother is right. When I hear about employees being punished for words or deeds while off duty, I usually sag with the employee. So when I saw a headline saying Jackson Health System had fired Nurse Niven Phelps for videos and photos she sent to her husband, that was my first impulse. But as I read the content of the communications, my sympathies shifted from Niven to the health system. In the videos, Niven rails against the president and vice president and says she hates them. Nothing wrong with that, but she goes on to say she's going to kill the vice president. And she gets specific saying she's been paid$53,000 for the hit job. When the authorities investigated, they discovered Niven had applied for a concealed carry permit and practiced at a gun range. If you're wondering how the authorities knew about the threats, it's because Niven's husband recipient of the videos and photos is in prison where the authorities review all such communications. Now, I'm pretty sure Jackson Health System did the right thing. Can't a guy say he's sorry? Dr. Aman was Jodi Coleman's ob. But when she was ready to deliver, he was performing a C-section on another patient. So a different OB handled Jodi's delivery. She delivered the first twin successfully, but the second one was trapped inside too long and suffered brain damage. Dr. Amon said how sorry he was. When Jodi and her husband sued Dr. Amon, they wanted to use his apology as evidence of liability. But the court ruled the statement inadmissible under Arizona's apology law, which makes apologies by doctors and admissible when the jury ruled in favor of Dr. A. Amen. Jodi and her husband appealed arguing that the apology law is unconstitutional because it overturns the common law rule that apologies can be used as admissions of liability. The court rejected the argument ruling that the apology law serve as a legitimate public purpose. The case is Coleman versus Amen. Arizona Court of Appeals, mark Twain, right? Again, mark Twain said, it's better to keep your mouth shut and appear stupid than open it and remove all doubt. Dr. Motion. SFI should have heated that advice. When Dr. DelGiorno learned that SFI had administered blood thinner to a patient with an obvious case of Intercerebral bleeding, he called him an idiot. So what did SFI do? He sued Del Jarno for defamation his case. Well, he called me an idiot, and I'm not Q E D. The court was not impressed. It ruled that the defendant was giving the opinion that SFI is an idiot, not stating a fact. And opinions can't be false. So SFI not only lost the case, but was ordered to pay the defendant$130,000 in attorney's fees. He really does sound like an idiot. The case is Sharif Taka versus O' Arizona Court of Appeals. How to say no? We all know that no means no. But is there a consensus on how to say it? Apparently not. If this, uh, federal court decision decision is any indication, a federal statute says that a solicitor must stop calling a person after the person has clearly expressed a desire that the calls stop. Jermaine Stewart sued a home mortgage company that kept calling him for free home mortgage estimates after he had told them to stop. The mortgage company responded that Jermaine did not tell them to stop so precisely. What did Jermaine say? He said, quote, I'm not interested. I don't even have a house. Oh, the court ruled the mortgage company's right. He didn't say stop calling. He said he wasn't interested and not having a house. That may be interesting, but it's not a no. The case is Stewart versus Network Capital, central District California wanna make a hundred grand. You could earn$100,000 in your spare time. All you need to do is come up with an advertising jingle for a personal injury law firm. Morgan and Morgan, which describes itself as the country's biggest personal injury firm is offering$100,000 for the best jingle. The only requirement is that it contain one of three phrases. Dial pound, la w, that's all or America's largest injury law firm, or for the people.com entries are due by September 26th. Give it a try, but one thing you can't use for your injured Oregon call Morgan and Morgan. I already sent that one in myself. 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 A Weekly and Connections magazine for the next edition.

Speaker 1: 7:26

Thank you for listening. If you enjoy this episode, be sure to subscribe to A H L A speaking of health law wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org.