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Using the Affordable Care Act in Defense of Catastrophic Personal Injury Cases

Courts across the country are beginning to consider the argument that the Affordable Care Act (ACA) serves as a vehicle to limit a plaintiff’s claim for future medical damages. Plaintiffs often use exaggerated life care plans...more

NCAA Faces New Class-Action Concussion-Related Lawsuits

The National Collegiate Athletic Association (“NCAA”) was hit with seven new concussion-related class action lawsuits on August 31, 2016. The new lawsuits increase the total number of lawsuits filed since May 2016 to 22...more

Dismissing Lawsuits Against Owners of New York Nursing Homes

There are many state and federal statutes which provide personal liability against the owners of businesses that are operated through corporate or other legal forms such as Limited Liability Company’s (“LLC’s”). One such...more

Eleventh Circuit Finds Insurer Liable for Medicare Lien Notwithstanding Insurer's Efforts to Satisfy the Lien in Settlement, also...

In a case with far-reaching implications, the Eleventh Circuit Court of Appeals issued an opinion concluding that the Medicare Secondary Payer Act (MSP) permits a private insurance company/PART C Medicare Advantage...more

Settling Defendants Beware: Eleventh Circuit Holds Settling Insurer Liable for Failure to Protect Medicare Payments Made by...

Congress created an uproar among personal injury tort defendants and their insurers when it passed the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) less than 10 years ago. The $1,000 per day fine for failure to...more

Medicare Advantage Organizations May Sue For Double Damages Under MSP Act - Humana Medical Plan, Inc. v. Western Heritage Ins....

On August 8, the Eleventh Circuit Court of Appeals decided an issue of first impression in the circuit under the Medicare Secondary Payer (MSP) Act. In sum, the Eleventh Circuit held that a Medicare Advantage Organization...more

4th DCA Confirms Florida’s Adoption of the Daubert Standard for Expert Witness Testimony in Florida State Court Applies...

Florida's Fourth District Court of Appeal recently was the third District Court of Appeal to rule on a lingering question left in the wake of the adoption of 2013 legislative amendments to the Florida Evidence Code regarding...more

West Virginia Supreme Court- Medical Power of Attorney Does Not Have Power to Make Binding Legal Decisions for Incapacitated...

In May, the Supreme Court of Appeals of West Virginia issued a decision in the Wanda Williams v. CMO Management, LLC case. Robert Thompson suffered from Alzheimer’s disease and resided at a nursing facility preceding his...more

Medical Litigation Newsletter - Spring 2016

Reducing Monetary Recovery in “Lost Chance Of [Medical] Recovery” Cases - In medical malpractice cases involving solely “iatrogenic” loss (e.g., harm of or relating to medical treatment), plaintiff bears the burden of...more

Premises Liability Claim Barred By Professional Negligence Statute of Limitations

In Catherine Flores v. Presbyterian Intercommunity Hospital, the Supreme Court of California held that a claim for negligence in the maintenance of equipment and care needed to implement the doctor’s order concerning her...more

Bad News for ERISA Plan Reimbursements: Chase The Money Before Settlement Funds Dissipate, Supreme Court Rules

This just in…. A big debate was resolved today by the United States Supreme Court: Can an ERISA plan sue to recover medical expenses paid on the participant’s behalf after the settlement funds have dissipated?...more

Supreme Court Decides Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan

On January 20, 2016, the U.S. Supreme Court decided Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, No. 14-723, holding that where an ERISA-plan participant has dissipated a third-party...more

Massachusetts Court: Patients Have Standing to Sue for Data Breach Based on Data Exposure Alone

A Massachusetts Superior Court judge held that a plaintiff has standing to sue for money damages based on the mere exposure of plaintiff’s private information in an alleged data breach. The court concluded that the plaintiff...more

Measuring Medical Expense Damages and the Role of the Collateral Source Rule

Two recent rulings illustrate the widely varying responses courts have taken in confronting an emerging national issue: how to measure damages for past medical expenses when the hospital’s treatment charges, before discounts...more

Equitable in Name Only?: Tracing a Long and Tortured Path

Knowingly spending money that isn’t yours sounds like a no-no, but depending on how the Supreme Court rules in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan (No. 14-723), certain ERISA...more

Health Alert (Australia) - November 16, 2015

In This Issue: -Judgments; Legislation; and Reports. - Excerpt from Judgments: Commonwealth. Federal Court 11 November 2015 - Ramsay Health Care Australia Pty Ltd v Compton [2015] FCA 1207 The Federal...more

Discounted Amount Paid by a Third Party for an Uninsured Plaintiff's Medical Lien Is Not Admissible Without Evidence to Show it...

On October 28, 2015, the California Court of Appeal for the Third District issued a decision, addressing the ongoing issue of admissibility of evidence of economic damages for an uninsured plaintiff's past medical expenses. ...more

Health Alert (Australia) - October 5, 2015

In This Issue: - Judgments; Legislation; and Reports. - Excerpt from Judgments: Victoria. Epichealth Pty Ltd v Yang [2015] VSC 516 The Supreme Court has granted an interlocutory...more

Ky. Ruling Casts Doubt on Health Care Arbitration Agreements

Health care institutions in Kentucky may want to take a fresh look at their patient arbitration provisions, in light of a September 24 decision by the Kentucky Supreme Court. Out-of-state institutions may want to take a...more

Ask But Don’t Tell: Kentucky Allows Defendant to Seek Ex Parte Interviews of Plaintiff’s Treating Physicians

We walked into the Drug and Device Law Rock Climber’s room last night to find her packing for her return to college while the ignored TV blared in the background. Onscreen was a popular cable reality franchise involving...more

Preemption (and Other Things) Defanging Depakote Claims

It wasn’t a complete win, but the summary judgment outcome in Rheinfrank v. Abbott Laboratories, Inc., ___ F. Supp.3d ___, 2015 WL 4743056 (S.D. Ohio Aug. 10, 2015), has to put a spring in the step of the defendants as they...more

Health Alert (Australia) - August 17, 2015

In This Issue: - Judgments; Legislation; and Reports. - Excerpt from Judgements: New South Wales (NSW) 13 August 2015 - Waller v James [2015] NSWCA 232 The NSW...more

Appellate Court Restricts Vicarious Liability Of Hospitals

In a decision issued this week, the Connecticut Appellate Court rejected an argument that a hospital has a nondelegable duty to provide emergency care and thus is vicariously liable for the professional negligence of an...more

No Duty for Device Manufacturer to Provide Separate Warnings to Hospital, According to Washington Court of Appeals

We admit it. We (and “we,” in this instance, should be read in the singular) are fans of certain social media, particularly the one that involves “posting” on a “wall” then sitting back and basking in the “likes.” We tend...more

Medical Malpractice Damage Caps — A Balance of Justice

In a recent landmark decision for the citizens in the State of Florida, Florida’s Fourth District Court of Appeals, the appellate court for Palm Beach, Broward, and the counties to their north, issued an opinion finding the...more

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