Norman Tabler, Jr.

Norman Tabler, Jr.

Faegre Baker Daniels

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Will In-House Attorneys Reach for their Whistles?

The news is full of stories about whistleblowers collecting millions from their former employers. Surely at least a few in-house lawyers fantasize about that kind of payday. After all, who knows better than an in-house...more

2/22/2017 - Attorney-Client Privilege Bio-Rad Laboratories Privileged Communication Sarbanes-Oxley Whistleblowers

When 30 Days Is Not 30 Days

Concerned about a surgeon’s skill, a hospital ordered him to “have five bowel surgery cases proctored,” specifying no time limit. After a month, when the surgeon hadn’t met the five-case requirement, the hospital filed an...more

2/20/2017 - Health Care Providers Hospitals Physicians

Far-Fetched Whistleblower Claim of the Month

The hospital industry is accustomed to far-fetched whistleblower claims: allegations that a hospital knowingly submitted false or fraudulent Medicare or Medicaid claims or fired a whistleblower for trying to prevent such...more

2/6/2017 - False Claims Act (FCA) Health Care Providers Healthcare Fraud Whistleblowers

Another Challenge to U.S. on Risk Corridor Payments

Molina Healthcare has joined the long line of insurers suing the government for failure to honor its obligations under the Affordable Care Act’s “risk corridor” program. According to Molina’s 84-page complaint filed Jan. 23,...more

2/2/2017 - Affordable Care Act Health Insurance Insurance Industry Qualified Health Plans

Agency Law Takes Center Stage in Psychologist Torture Case

If you think agency law is boring, take a look at the Jan. 27 opinion by a federal court in the torture case brought by three foreign citizens against two psychologists who worked for the CIA. The plaintiffs filed suit under...more

2/1/2017 - Alien Tort Statute Independent Contractors Motion to Dismiss Torture

Hospital Insists it Was Malpractice; Patient Disagrees

At first glance it looks like a “Man Bites Dog” headline. The hospital insists that the patient was injured by professional negligence; the patient vehemently disagrees. The argument goes all the way to the state court of...more

1/27/2017 - Health Care Providers Hospitals Medical Malpractice Negligence Premises Liability

Medicare Appeal Proposal Falls Far Short of Court Mandate

For years the hospital industry has been in an uproar over the mountainous backlog of Medicare claim appeals. Current estimates are that a whopping 650,000 claims are at the Administrative Law Judge level awaiting...more

1/25/2017 - ALJ Appeals CMS HHS Medicare

CMS Report Blasts Provider Directory Errors

A new report by CMS echoes many patients in criticizing Medicare Advantage (MA) online provider directories for containing too many errors. “Online Provider Directory Review Report” concludes that too often a directory entry...more

1/25/2017 - CMS Health Care Providers Medicare Advantage

False Claims that Don’t Violate the False Claims Act

The False Claims Act (FCA) establishes heavy liability (treble damages and penalties that can exceed over $20,000 per claim) for any person who knowingly presents a false claim for payment to the government. It also provides...more

1/24/2017 - False Claims Act (FCA) Federal Contractors Qui Tam

Iowa Drug Pricing Disclosure Law Bites the Dust

In 2014 Iowa enacted a statute requiring pharmacy benefit managers (PBMs) to disclose pricing methodologies to their network pharmacies and to the State Insurance Commissioner. Is the statute “a patchwork of costly mandates...more

1/19/2017 - Drug Pricing ERISA Pharmaceutical Industry Preemption

Qualifications for Artificial Limb Suppliers, After Only 16 Years

Bill Clinton was President when Congress enacted a law requiring CMS to come up with qualifications for those who make or supply artificial limbs to Medicare patients. It was January 11, 2017, when CMS finally unveiled the...more

1/19/2017 - CMS DMEPOS Durable Medical Equipment Medicare

Physician Liability for Death of Nonviable Fetus

If an obstetrician’s negligence causes the miscarriage of a nonviable fetus—i.e., one that couldn’t live outside the womb–does the patient have a cause of action for wrongful death? In Alabama the answer is yes, according to...more

1/17/2017 - Health Care Providers Negligence Physicians Wrongful Death

2016 Nerve-of-a-Burglar Award

Competition for the 2016 Nerve-of-a-Burglar Award was fierce, with health care providers constantly coming up with new and different ways to scam Medicare and Medicaid. Nevertheless, we have a clear winner: the Michigan...more

1/11/2017 - Criminal Prosecution Fraud Health Care Providers Healthcare Fraud Medicaid Medicare

Apology Laws Are Not Self-Executing

A recent study of state apology laws by three Vanderbilt University researchers concludes, among other things, that “from the perspective of physicians, apology laws are almost certainly detrimental,” increasing the frequency...more

12/16/2016 - Health Care Providers Medical Malpractice Physicians

EMTALA Anti-Retaliation Rule Narrower Than You Might Think

Regional Care Hospital fired Marie Gillispie because she was outspoken in telling hospital management that it was required to report an incident of patient dumping and had violated EMTALA by failing to do so. At least that’s...more

11/17/2016 - Anti-Retaliation Provisions EMTALA Health Care Providers Hiring & Firing Retaliation Summary Judgment

8th Cir. Resists Opportunities to Nix Nursing Home Arbitration

The plaintiff offered the Eighth Circuit several reasons to rule that he needn’t arbitrate claims against his father’s nursing home. But, figuratively swimming against the juridical current, the Eighth Circuit rejected all...more

11/17/2016 - Arbitration Arbitration Agreements Health Care Providers Nursing Homes

Broadening of Indiana Collateral Source Statute

The issue comes up a lot in personal injury cases: may the defendant introduce the discounted amount the provider actually accepted for medical services as evidence to be weighed against the undiscounted bill the plaintiff...more

11/9/2016 - Evidence Insurance Industry Insurance Litigation

The Difference between Expecting Referrals & Inducing Them

A new Fifth Circuit opinion explains the difference between offering a benefit in order to induce a Medicare referral and offering it in the expectation of a referral. The difference is important because the former is a...more

11/7/2016 - Anti-Kickback Statute Health Care Providers Medicare Omnicare Qui Tam Whistleblowers

La. Decision Clears Path for Circumventing Med Mal Cap

Brandi’s parents allege that they rushed her to the Opelousas General Hospital ER and asked Dr. Z to administer stroke medication, but Dr. Z declined, administering anti-seizure medication instead. Frustrated, they...more

10/31/2016 - Health Care Providers Medical Malpractice Summary Judgment

Whistleblower Can’t Use Discovery Info to Satisfy Rule 9(b)

Rule 9(b) requires a whistleblower alleging fraud to “state with particularity the circumstances constituting fraud.” Tom Bingham provided the particularity, but his case was nevertheless dismissed because of the way he came...more

10/21/2016 - Discovery False Claims Act (FCA) Rule 9(b) Whistleblowers

Continuing Assaults on Surprise Out-of-Network Bills

California struck the most recent blow against surprise out-of-network medical bills. Surprise bills are different from the bills you get when you knowingly choose an out-of-network provider. Those are painful, but they...more

10/14/2016 - Health Insurance HHS Out of Network Provider

Another Judicial Assault on Nursing Home Arbitration

They seem to come on an almost weekly basis: judicial rejections of arbitration provisions in nursing home contracts. The Sept. 22 attack by the Florida Supreme Court is the latest, and one of the harshest. When Juan...more

10/6/2016 - Arbitration Arbitration Agreements Health Care Providers Nursing Homes

DOJ & FTC Join Telemedicine Attack on Texas Medical Board

The U.S. Department of Justice and Federal Trade Commission have sided with Teledoc, Inc., one of the country’s biggest telemedicine companies, in its legal battle with the Texas Medical Board. The two agencies filed a joint...more

9/29/2016 - DOJ FTC Motion to Dismiss Sherman Act Telemedicine

False Claims that Don’t Violate the False Claims Act

A recent Fourth Circuit decision answers this riddle, “How can a contractor knowingly submit a false claim to the government without violating the False Claims Act (FCA)?” Give up? The answer is blindingly obvious—once...more

9/27/2016 - Corporate Counsel Failure To State A Claim False Claims Act (FCA) Federal Rule 12(b)(6) Hiring & Firing Retaliation Whistleblowers

Do CMS Ratings Punish Hospitals for Serving the Poor?

Does the CMS star rating system reward hospitals for serving the affluent and punish those that serve the poor? The answer is a resounding yes, according to a recently published analysis by Bloomberg BNA. The analysis...more

9/26/2016 - CMS Health Care Providers Hospitals

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