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No Good Deed Goes Unpunished

On August 7 Mission Hospital, in Asheville NC, learned the truth of Oscar Wilde’s observation that no good deed goes unpunished. That’s the day a federal court denied the hospital’s motion for summary judgment in a case...more

Patient Dies During Arbitration Agreement Rescission Period

What happens when a nursing home patient signs an arbitration agreement with a 30-day rescission, or cooling-off, period and then dies before the end of that period? Is the agreement enforceable because it wasn’t rescinded? ...more

Solution to One Problem Brings Two More

An August 2 FDA warning letter provides a reminder that solving one problem can create a new problem—or more. The letter to Coleman Peanut Co., in Petersburg VA, recites that the company uses a cat “as the firm’s pest...more

Keeping Patients Can Qualify as Dumping Them

EMTALA was enacted to prevent hospitals from turning away—or “dumping”—ER patients because they can’t pay. EMTALA requires a hospital to (1) provide a screening exam to determine if an emergency medical condition (EMC) exists...more

Tort Reform by Any Other Name

A rose by any other name may smell as sweet, but tort reform still smells bad to traditional opponents despite an attractive title. That’s why most observers believe that the House-passed “Protecting Access to Care Act,”...more

Ambulance Service Declared a Learned Profession in NJ

Who knew? In New Jersey ambulance service is considered a “learned profession,” up there with medicine and law. And that classification provides more than prestige. It means exemption from the state’s Consumer Fraud Act...more

The Strange Case of the Overly Informed Surgical Consent

The Pennsylvania Supreme Court’s cast its June 20 opinion as standing for the proposition that a surgeon can’t delegate his duty of obtaining informed consent to anyone else—his physician assistant in the case at hand. But...more

Admissibility of Insurance Coverage: Sauce for the Goose

When Kerrie Evans’s child was born with cystic fibrosis, she sued her nurse practitioner and doctor for failure to adequately inform her about prenatal testing for CF, making concerns about cost the centerpiece of her...more

Nebraska Med Mal Cap Survives 7th, 5th & 14th Amendment Attacks

The US Court of Appeals for the Eighth Circuit has upheld Nebraska’s statutory medical malpractice limit, rejecting attacks that were based on the Seventh, Fifth, and Fourteenth Amendments of the US Constitution. After a...more

Indiana Relaxes Telemedicine Rules as of July 1

Indiana’s relaxed telemedicine rules went into effect July 1. Generally, under the new rules a prescriber (defined as a physician, physician assistant, advanced practice nurse, optometrist, or podiatrist) may prescribe...more

Achievements You Don’t List on Your Resume

A physician immigrated to the United States in 1991 and established a medical practice called Compassionate Doctors. By 2013 the practice and its related health care entities boasted some 44 employees and contractors,...more

Professional Review Activity or Professional Review Action?

Was the Louisville hospital’s restriction of Dr. Ben Reid’s surgery privileges a professional review activity or a professional review action? When Ben sued on various tort theories, the hospital claimed immunity under the...more

Texas Dentistry Regulation Has No Teeth

A divided Fifth Circuit has affirmed a lower court ruling that an advertising restriction promulgated by the Texas State Board of Dental Examiners violates the First Amendment rights of the plaintiff dentists. The Texas...more

Twelve-Year Sentence for Medicaid Diaper Scam

Maria Paz Garza was the King Midas of incontinence supplies: she turned diapers into dollars—over two and a half million of them, according to the government’s indictment. She did it through a scheme that charged Texas...more

Iowa Supreme Court Recognizes Wrongful Birth Action

On June 2 the Iowa Supreme Court expressly recognized the right of parents to sue for wrongful birth. Pam and Jeremy Plowman allege the following: Pam underwent ultrasound in week 22 of her pregnancy. The radiologist’s...more

Last Rites for ER Doctor’s EMTALA Claims

ER physician Ryan Kime believed his hospital lacked the resources, procedures, and capacity to meet the requirements of EMTALA, and he repeatedly said so. At an ER meeting he reported two cases as possible EMTALA violations...more

Co-Winners of May’s Low-Return Fraud Award

We have a tie! Danielle Burroughs and Tim Arthur are co-winners of the Low-Return Fraud Award for the month of May. On May 30 a federal court ordered Danielle to pay a whopping $2.8 million in restitution for her role in a...more

Sometimes It’s Not What You Say But How You Say It

A recent First Circuit opinion demonstrates that sometimes how you say something is more important that what you say. In fact, that principle led the court to reverse the NLRB’s order that a Massachusetts hospital must...more

$4 Million Liability for Bad Legal Advice to a Chiropractor

Allstate Insurance has won a judgment of nearly $4 million against a NY lawyer and Calif. consultant who guided a NJ chiropractor in structuring a medical practice designed to appear to meet the requirements of the state...more

Who Says Ignorance of the Law Is No Excuse?

If you think that ignorance of the law is no excuse, take a look at the Eleventh Circuit’s opinion in US ex rel. Phalp v. Lincare Holdings. It leaves no doubt that in a False Claims Act case, ignorance can be a solid defense....more

Defendant Seeks Attorney Fees from Whistleblower’s Attorneys

When a qui tam case is dismissed, it’s not unusual for the defendant to seek an order requiring the whistleblower to reimburse its attorneys’ fees. What is unusual is for the defendant to seek an order requiring the...more

Why the Tail Policy Didn’t Cover the Doctor’s Tail

Dr. Steven Svabek may have set a record for the number of reasons why his tail policy didn’t cover the medical malpractice claims against him. According to a memorandum decision issued last week by the Indiana Court of...more

Third Circuit’s Gift to Qui Tam Defendants

It’s so brief—just eleven words in a 23-page, single-spaced opinion—that you could easily overlook it, but the Third Circuit’s recent opinion cites the government’s nonintervention in a qui tam case as evidence supporting...more

CMS Gamed System to Identify Hospitals Gaming System?

You can’t make this stuff up. When CMS conducted a study to identify hospitals that game the quality data reporting system, it used an approach that made the data reporting look better than it actually was. That bottom line...more

5/8/2017  /  CMS , HHS , Hospitals , OIG

Judge Has No Interest in DOJ’s Statement of Interest

In yet another demonstration of the benefits of lifetime tenure, a federal judge in Florida has told the Department of Justice to take a hike. It happened when the DOJ asked for permission to submit a “statement of interest”...more

5/5/2017  /  DOJ , False Claims Act (FCA) , Relators
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