The Lighter Side of Health Law - February 2019

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: 0:01

Hi, I'm Norm Taber, host of the A H L A podcast series, the Lighter Side of Health Law, sponsored by Coer Group. I hope you enjoy this month's edition, the nuclear Option. Here's a false Claims Actg case where the defendant is invoking a defense that qualifies as the nuclear option. Dr. Gerald Pollak filed a whistleblower case against Health System Giant Intermountain Healthcare. He alleged that Intermountain performed unnecessary heart surgeries and then charged Medicare for them. Of course, Intermountain insists that it did no such thing, but Intermountain isn't stopping. There. It is petitioned the US Supreme Court to declare. Are you sitting down that the whistleblower provisions of the False Claims Act violate the US Constitution? Intermountain argues that the act violates the Constitution by permitting any Tom, Dick, or Harry to be a federal officer prosecuting a case in the name of the federal government. When every seventh grader knows that article two requires that officers can be appointed only by the president courts or department heads. Second, even if the whistleblowers are not officers within the meaning of Article two, that's also a violation because it means that a core officer function, namely civil law enforcement, is invested in a non-office. The case is Intermountain Healthcare versus US Xra. Poff. Oh, by the way, Yus 17 million, that's the message. Providence Hospital in Washington State gave the Lloyds of London carrier that wrote the hospital's claims made insurance policy. The policy required the hospital to notify the carrier no later than 60 days after learning of a claim. When the hospital fired neurosurgeon, Dr. David Newell, he screamed wrongful termination. Did the hospital notify the carrier? No. Then Dr. Newell demanded arbitration still no notice. The proceeding was scheduled, still no notice. They held the proceeding and it resulted in a 17 million award to the neurosurgeon. Then the hospital notified the carrier and demanded its 17 million. That was over six months after the formal arbitration demand, the carrier refused to pay. Citing the 60 day notice requirement. Providence sued in federal court. Each side moved for summary judgment on the notice issue applying Washington law. The court came down squarely for the hospital ruling that subject to only one exception notices on time so long as it's given any time within the policy period. That's seven years in this case. The one exception is when late notice results in prejudice that is harmed to the carrier. Breathing is high of relief. The judge noted that the prejudice issue was not before him, and the parties would need to file a new lawsuit if they wanted to argue about that. The case is Providence Health versus certain underwriters at Lloyd's Western District Washington. This is just a test you're watching. Television went out of the blue. You hear an ear piercing tone followed by a deep voice announcer telling you that you are not to be alarmed. This is just a test of the emergency alert system and that if it had been an actual weather alert, say for a tornado, you should take cover maybe in your cellar, but he goes on. You don't have to take cover because

Speaker 2: 2:58

This is just a test. A recent New Jersey religious discrimination case brings this alert to mind. Amy Skews, that's S K U S E, filed a religious discrimination case against her employer for firing her when she refused to get a yellow fever vaccination because it was forbidden by her Buddhist faith. The trial court granted the employer's motion to compel arbitration on the grounds that Amy had agreed to its arbitration policy, but the appellate court reversed the employer's victory on what might be called a, this is just a test rationale. The employer's theory that Amy had agreed to its arbitration policy was based on a series of slides, emails to all new employees, including Amy. True. The slides set out the policy, but they were labeled a quote training module, and the last slide asked the employee to click a button to acknowledge seeing the slides. The appellate court noted that it was one thing to acknowledge seeing the slides, but quite another to agree to the policy set out in the slides. Amy May have done the former, but she hadn't done the latter. The employer's position was a little like saying that if you've heard the emergency alert, you've made a contract to go to your seller in the event of a tornado. The case is excuses versus Pfizer, New Jersey Superior Court where there's smoke who needs fire. The First Circuit Court of Appeals has overruled the age old adage where there's smoke, there's fire. Tom Gilfoyle was president of a company that partners with hospitals to provide specialty pharmacy services for chronically ill patients. He was concerned that one of his company's contracts might violate the anti-kickback statute and therefore the False Claims Act, and he would not shut up about it, threatening to go over the chairman's head to the full board. So the chairman fired him. Tom filed an action alleging he was fired in retaliation for internally reporting a false Claims Act violation. The district court dismissed the case ruling that Tom's complaint failed to connect his kickback allegations with an actual false Medicare or Medicaid claim. The First Circuit reversed ruling that the District Court had set the bar for Tom too high. He didn't have to show actual submission of a false claim. All he had to do was show his action in raising concerns reasonably could lead to a false claims action. As the court put it, the plaintiff in a false claims Act, retaliation action doesn't need to plead the existence of a fire, only quote a reasonable amount of smoke. The case is Gilfoyle versus Shield's First Circuit, what's in a name. Juliet says that a rose would smell the same no matter what it was called, making the point that a name is simply an artificial convention with no real meaning, but don't try telling that to Bill McFeely. While recovering from gastric surgery in Kennedy Hospital, bill suffered a heart attack. He believed there was negligence on the part of the on-call resident. The resident was employed not by Kennedy Hospital, but by Rowan University Medical School, which is a public entity. Bill's lawyer sent a tort claim notice to the New Jersey Attorney General

Speaker 3: 5:56

And Kennedy Hospital, but not to the resident or his employer, Rowan University. In response to the question asking the names of the public entities at fault, the notice named Kennedy Hospital, the state of New Jersey, and any other state agency involved in the matter, remember that term state agency when Bill's lawyer filed a complaint naming the resident as a defendant, the resident moved to dismiss for failure to comply with the Tort Claim Act by naming his employer Rowan University. The trial court agreed with him and dismissed the case. Bill appealed arguing that the tort notice was valid because it named the state of New Jersey and quote any state agency involved in the incident. But here's where Juliet was wrong. The court ruled against Bill because Rowan University is a public entity, not a state agency. If it had been a state agency, the tort notice would've been valid, but since it's a public entity, it had to be specifically named the court affirmed the dismissal. The case is McFeely versus Carr Superior Court of New Jersey Appellate Division. Well, that's it for this month's edition of the Lighter Sight of Health Law. I hope you enjoyed it. Check your A H L A Weekly and Connections Magazine for the next edition.