|
|
 |
|
2001 KANSAS BAR ASSOCIATION
ANNUAL SURVEY
CASE LAW UPDATE - HEALTH LAW
| I. |
FEDERAL REGULATORY DEVELOPMENTS |
| |
| |
| A. |
EMTALA |
| |
| |
| EMTALA has been expanded to outpatient departments achieving status under the
provider based status regulations. 42 CFR 413.65; 42 CFR 489.24. |
| |
| Hospital property now means the entire main campus as defined in the provider
based regulations including the parking lot, sidewalk and driveway, as well as any
facility or organization that is located off the main campus but has been
determined under the provider based regulations to be a department of the hospital.
Under the provider based regulations, campus means the physical area immediately
adjacent to the provider's main buildings, other areas and structure that are not
strictly contiguous to the main buildings but are located within 250 yards of the
main buildings and any other areas determined on an individual case basis by the
HCFA regional office to be part of the provider's campus. |
| |
|
| |
| Department of a provider means, under the provider based regulations, a
facility or organization or a physician office that is either created by or
acquired by a main provider for the purpose of furnishing health care services of
the same type as those furnished by the main provider under the name, ownership,
and financial and administrative control of the main provider, in accordance with
the provisions of the regulations. A department of a provider may not be licensed
to provide health care services in its own right and may not by itself be qualified
to participate in Medicare as a provider and the conditions of participation do not
apply to a department as an independent entity. |
| |
| If an individual comes to an off campus department and a request is made for
examination or treatment of a potential emergency medical condition, the hospital
is obligated to provide an appropriate medical screening examination and any
necessary stabilizing treatment or an appropriate transfer. The capability of the
hospital as a whole, not just the capability of the department, is the standard to
be utilized, but the hospital is not required to locate additional personnel or
staff to off campus departments to be on standby for possible emergencies. The
hospital must also establish protocols for the handling of individuals with
potential emergency conditions at off campus departments. The protocols must
provide for direct contact between personnel at the off campus department and
emergency personnel at the main hospital campus and may provide for the dispatch of
practitioners when appropriate from the main hospital campus to provide screening
or stabilization. |
| |
| If the off campus department is an urgent care center, primary care center or
other facility that is routinely staffed by physicians, RN's or LPN's, these
personnel must be trained and given appropriate protocols for the handling of
emergency cases. At least one individual on duty during the regular hours of
operation must be designated as a qualified medical person. If the off campus
department is a physical therapy, radiology or other facility not routinely staffed
with physicians, RN's or LPN's, the department's personnel must be given protocols
that direct them to contact emergency personnel at the main hospital for direction.
Under this direction and in accordance with protocols established in advance by the
hospital, the individual must describe patient appearance and report symptoms and,
if appropriate, either arrange transportation of the individual to the main
hospital or assist in an appropriate transfer. |
| |
| If the main hospital campus has the capability required by the individual and
movement to the main campus would not significantly jeopardize the life or health
of the individual, personnel must assist in arranging this movement to the main
campus. This is not deemed a transfer since the individual is simply being moved
from one department to another. If transfer of the individual to another facility
is warranted because the main campus does not have the specialized capability or
facilities required by the individual or because the individual's condition is
deteriorating so rapidly that taking the time needed to move the individual to the
main campus would significantly jeopardize the life or health of the individual,
the off campus department must, in accordance with protocols established in advance
by the hospital, assist in arranging an appropriate transfer. The protocols must
include procedures and agreements established in advance with other hospitals in
the area of the off campus department to facilitate such transfers. |
| |
|
|
| |
| B. |
STARK |
| |
| |
| The issuance of Phase I of final regulations by the Department of Health and
Human Services (HHS) on January 4, 2001 (42 CFR Parts 411 and 424) with regard to
the federal statute generally referred by the term "Stark II" has again caused
considerable publicity and concern. In general, Stark II prohibits a physician
from referring a Medicare or Medicaid patient to an entity for what the law terms
"designated health services" if the physician, or an immediate family member, has a
financial relationship with that entity unless the financial relationship wholly
fits within one of several exceptions. In its present form, the statute has been
applicable since 1993. The point should thus be made that Stark II is a
self-executing act that does not require regulations to take effect. |
| |
| A new exception is provided for what is labeled "medical staff incidental
benefits" that covers compensation in the form of items or services, but not
including cash, from a hospital to a member of its medical staff when the item or
service is used on the hospital's facilities if all of the regulatory conditions
are met. In addition, an exception is provided for non-monetary compensation, not
including cash or a cash equivalent, that does not exceed an aggregate of $300 per
year if it is not calculated in a manner that takes referrals or other business
generated by the referring physician into account, if it is not solicited by the
physician or the physician's practice, and if it does not violate the federal
anti-kickback statute. There is also a new exception for compliance training
provided by a hospital to a physician but, oddly, the exception is stated narrowly.
It requires that the training must either cover the basic elements of a compliance
program or the specific rules of a federal health care program. |
| |
| The scope of the statutory concept of a compensation arrangement between a
physician and an entity to which a referral is made, when combined with rather
rigid requirements for many of the statutory exceptions, has been a major cause for
concern. Health care arrangements and transactions are quickly evolving and in
many instances fitting a particular arrangement precisely within the statutory
exceptions has proved difficult. The new regulations respond to this concern by
finalizing an exception for "fair market value" compensation. The requirements for
a compensation arrangement to fit within this exception are that the arrangement be
in writing for a specific time frame, not violate the anti-kickback statute, be
commercially reasonable and further the legitimate business purposes of the
parties, specify the compensation in advance, be consistent with fair market
value and not be determined in a manner that takes referrals or other business
between the parties into account. Fair market value is defined as the value in an
arms-length transaction, consistent with general market value. |
| |
| Also, a specific reference has been added to define the concept of fair market
value with regard to rentals and leases. The regulation has previously provided,
with reference to a lease of space, that fair market value may not be adjusted to
reflect the additional value that either a prospective tenant or landlord would
attribute to the proximity or convenience to the landlord when the landlord is a
potential source of patient referrals to the tenant. An additional statement has
been added to the effect that rental payment may take into account costs incurred
by the landlord in developing or upgrading the property or maintaining the property
or its improvements. |
| |
| The new regulation is also intended to provide additional protections to
entities that submit claims for designated health services. Stark regulations have
always defined a financial relationship that implicates Stark as either direct or
indirect. An indirect relationship would involve an intervening person or party
such that the physician's relationship with the hospital would run through such
other person or entity. The final regulations significantly reduce the situations
in which an indirect compensation arrangement exists for Stark II purposes and add
an element that would require that the entity providing the services pursuant to a
prohibited referral have actual knowledge of, or act in reckless disregard or
deliberate ignorance of, the fact that the referring physician has an indirect
financial relationship with it. In addition, the new regulations provide that
payment may be made to an entity that submits a claim for a designated health
service if it did not have actual knowledge of, and did not act in reckless
disregard or deliberate ignorance of, the identity of the physician who made the
referral, and the claim otherwise complies with all applicable laws, rules and
regulations. |
| |
|
|
| |
| C. |
HIPAA |
| |
| |
| On December 20, 2001 the Department of Health and Human Services issued the
long awaited HIPAA privacy regulations. Few individuals working in or advising
individuals and entities about health care were actually prepared for the breadth
and complexity of the regulations which, with comments, cover over 365 pages in
the Federal Register (65 Fed. Reg. 82462). The effective date was expanded to
April 16, 2001, due to an error the Clinton administration made in transmitting the
rule to Congress. |
| |
| The regulations as published in December 2000 impact consumers, individuals,
institutional health care providers, and health care plans. They also impact
virtually all businesses who work with health care providers and plans. If
information touches the delivery, payment, or operations of health care in any way,
chances are the HIPAA regulations will apply. For attorneys not directly involved
in representing clients in the health care arena, the new rules will be an
adjustment governing the ability to obtain information necessary to represent
clients. While the final rule presents the first comprehensive federal scheme to
protect the privacy of health information, there is a provision for maintenance of
state law protections when those provisions are more stringent. |
| |
| The final regulations cover health plans, health care clearinghouses and
health care providers. The rule speaks in terms of protected health information
instead of "records." Protected health information is any information, oral,
written or recorded in any form or medium, which is created or received by a
provider, plan, public health authority, employer, life insurer, school, university
or clearinghouse that relates to the past, present or future physical or mental
health or condition of an individual, the provision of health care to an individual
or the past, present or future payment for the provision of health care. Business
associates of providers, plans and clearinghouses must sign contracts protecting
health information in order to do business with plans, providers and
clearinghouses. Patients must consent to have the provider use health information
in treatment for operations or payment. They must, under most circumstances,
authorize release of information for all other purposes. Consents and
authorizations must contain specific data set forth in the regulations.
Psychiatric records merit special protection. There are also special rules
applicable to research. Only the minimum amount of information necessary to
accomplish the purpose of the consent or authorization may be disclosed. |
| |
| Providers must now provide patients access to their health information unless
exceptional circumstances are present. Individuals may request that their records
be "corrected" although this is not an automatic process. Individuals may request
a list of where their information has been disclosed. Individuals are also
afforded notice of the provider's policies relating to uses and disclosures of
health information, their rights, and the provider's legal duties. Entities must
develop policies and procedures, designate a privacy officer, and train employees
on the regulations. A grievance process must also be established. |
| |
| As with most regulations impacting health care, there are penalty provisions.
The Office of Civil Rights will be the compliance and enforcement arm of the
Department of Health and Human Services. |
| |
|
|
| II. |
KANSAS REGULATORY CHANGES |
| |
| |
| A. |
K.A.R.
28-34-6a(9)(2) and K.A.R. 28-34-9a(f)
were amended to permit prescribing for their covering physicians to authenticate a verbal
order within 72 hours of the patient's discharge or 30 days, whichever occurs first. A
"covering practitioner" is a member of the hospital's medical staff who is authorized by
the patient's attending or other practitioner to provide care in the absence of the
attending or other practitioner.
K.A.R.
28-34-1a(d). |
| |
|
| |
| B. |
There have been clarifications to the hospital construction
standards. K.A.R.
28-34-32b. |
| |
|
| |
| C. |
There are temporary regulations governing physician assistants.
The temporary regulations will expire May 2001, and hearings were scheduled for April 24,
2001. |
| |
|
| |
| D. |
Proposed regulations governing the procedures and treatment with
light based medical devices for instruments that produce or amplify electromagnetic
radiation have been issued. Hearings were held April 28, 2001. |
| |
|
| |
|
| III. |
FEDERAL STATUTORY ENACTMENTS |
| |
| |
| A. |
Electronic Signatures. On June 30, 2000, President Clinton
signed the Electronic Signatures in
Global
and National Commerce Act. The act became effective October 1, 2000. Health care
providers utilizing electronic media are impacted by this act. The act would appear to
recognize the validity of electronic signatures in health care records and requests. It
may also give legitimacy to electronic prescriptions. |
| |
|
| IV. |
KANSAS STATUTORY ENACTMENTS |
| |
| |
| A. |
HB
2032 amended the screening panel statute eliminating the requirement that panel
opinions be provided to the Commissioner of Insurance. |
| |
|
| |
| B. |
HB
2210 amended the requirements for pharmacies in medical care facilities to provide that
a licensed physician assistant may be in charge of distribution and control of drugs when
the pharmacist is off premises. Registered indigent health care clinics and federally
qualified health centers have been added as entities that may keep drugs for distribution
to patients. |
| |
|
| |
| C. |
HB
2115 amended the Kansas life and health insurance guaranty association to allow payment
to providers of persons covered under the Act and defined provider. The change enables
direct payment to be made to the individual or entity providing medical services because a
health insurer became insolvent during a specified time period. |
| |
|
| |
| D. |
SB
239 created a new advisory committee on trauma changing the composition of the
committee. |
| |
|
| |
| E. |
SB
64 amends the reporting of AIDS/HIV laws to add hospital administrators as mandated
reporters. |
| |
|
| |
| F. |
SB
212 amends the Dental Practices Act by deleting the prohibition preventing practice
under a corporate, company, association, clinic or trade name. |
| |
|
| |
| G. |
HB
2457 made technical changes to reflect that physician assistants are licensed under the
Physician Assistants Licensure Act. |
| |
|
| V. |
ATTORNEY GENERAL OPINIONS |
| |
| |
| A. |
Attorney
General Opinion 2000-26. A physician may delegate tasks to a person who in the
physician's judgment is competent and qualified by training, experience and licensure to
perform the task. Proper delegation may include application of an anesthetic drug to a
person who is not a RNA. |
| |
|
| VI. |
CASES |
| |
| |
| A. |
Administrative Law |
| |
| |
| Schroll v. Kansas State Board of Healing Arts, 2000 Kan. App. Lexis 502
(Kan.App.2000). The Board disciplined Dr. Schroll for unprofessional conduct and
fined him $5,000. The physician asserted that the Board acted unconstitutionally
and its findings were not supported by the evidence. The district court and
appellate court disagreed. They found that the Board acted properly when it
imposed discipline for the physician's conduct in marketing Amway to his patient
during a medical consultation. |
| |
| State.
ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 7 P.3d 1194 (2000). The
Kansas Healing Arts Act provisions relating to practice by naturopathic physicians
is not an unconstitutional delegation of powers, and a naturopath was properly
enjoined from using the title N.M.D. or naturopathic medical doctor; from making
diagnosis and administering prescription and nonprescription drugs to treat,
relieve or remedy a disease, condition or ailment; from manipulating or adjusting a
patient's back; from supplying, prescribing or administering prescription drugs
without an order from a person appropriately licensed; and from puncturing veins as
a route of administration of any drug. |
| |
|
|
| |
| B. |
Antitrust |
| |
| |
| Diaz v.
Farley, 215 F.3d 1175 (10th Cir. 2000). Plaintiffs, three anesthesiologists,
brought an antitrust suit against three other anesthesiologists and two entities
under the Sherman Act for a horizontal boycott and agreement to honor that boycott.
Plaintiffs had moved from the community, then returned and requested to be
scheduled for OB anesthesia services. Defendant hospital contracted with defendant
physicians to provide OB anesthesia services for its patients and scheduled general
anesthesiologist coverage for OB, resulting in double coverage when plaintiffs were
scheduled to provide OB services. The trial court granted summary judgment. The
Tenth Circuit agreed with the trial court that a per se analysis did not govern
defendants' conduct. The court found that plaintiffs failed to show that
defendants held a dominant position in the market; that because plaintiffs were
still free to offer anesthesia services in the hospital and were free to compete to
increase their share of OB patients, the defendants did not control access to an
element essential to plaintiffs' ability to compete; and the arrangement could be
viewed as enhancing competition. Additionally, the court cautioned that a per se
approach may not be appropriate in the health care arena because of the need to
exercise professional judgment. The rule of reason approach was deemed more
appropriate. |
| |
| Orr v. BHR,
Inc., 2001 U.S. App. Lexis 2391 (10th Cir. 2001). Plaintiff was an emergency
department physician and secretary/minority stockholder for his employer physician
corporation. He complained that the prices charged by BHR for billing services
were too high. His employer corporation and defendant had common shareholders.
His employment was terminated after his complaint and he sued alleging antitrust
violations, civil conspiracy and tortious interference with his employment
contract. Defendants were granted summary judgment. The Tenth Circuit affirmed.
Plaintiff did not have standing under the antitrust laws according to the Tenth
Circuit because he was not the recipient or provider of billing services and his
loss of employment was not the result of an absence of competition. Because
plaintiff was a minority shareholder, his opposition had no impact on the
continuation of the billing arrangement, even if it was anticompetitive. |
| |
|
|
| |
| C. |
Bankruptcy |
| |
| |
| In re Hart, Case No. 97-10446-7; Adversary No. 97-5087 (Kan. Bank. 9-25-00).
Plaintiff objected to debtor's discharge under Chapter 7. Plaintiff was awarded a
medical negligence judgment against debtor and alleged he made improper transfers
of property. The bankruptcy judge found that because debtor's office equipment was
exempt, there was no intent to hinder, delay or defraud. The court further found
that debtor's failure to disclose leases on his residence and office were not
material. The judge also noted that debtor did not have to disclose possible
causes of action that would be futile. The court further ruled that there was no
evidence of fraudulent intent by debtor's failure to list an exempt vehicle or his
gross medical practice income when the schedules were amended in a timely manner
and the reasons given were plausible. |
| |
|
|
| |
| D. |
Causation |
| |
| |
| Bowling v. Albert, 2000 Kan. App. Lexis 1235 (Kan. App. 2000). Defendant was
granted summary judgment on the ground plaintiff failed to sustain her burden of
proving her claim for loss of chance of survival. The Court of Appeals affirmed
finding the plaintiff's expert did not demonstrate causation by showing the
physician's actions caused the patient's death. |
| |
| Burton v. Green, No. 85,165 (Kan. App. 3-16-01)(unreported). In this loss of
chance for better recovery and wrongful death case, the trial court would not
permit the wrongful death case to go to the jury. The jury returned a defense
verdict on the loss of chance claim. Because the testimony contained in the record
on appeal failed to demonstrate proper evidence of causation, the district court
did not improperly withhold the wrongful death claim. After trial, a juror signed
an affidavit stating the jury believed it had to find defendant 100% at fault to
find liability. The trial and appellate court found the affidavit to be
inadmissable mental processes. |
| |
|
|
| |
| E. |
Constitutional Rights |
| |
| |
| Ferguson v.
City of Charleston, 149 L.Ed. 2d 205, 2001 U.S. Lexis 2460 (U.S. 3-21-01). The
U.S. Supreme Court ruled that a state hospital's performance of a diagnostic test
to obtain evidence of a patient's criminal conduct for law enforcement purposes is
an unreasonable search if the patient has not consented to the procedure. The
Medical University of South Carolina ("MUSC") had ordered drug screens to be
performed on urine samples from maternity patients who were suspected of using
cocaine. Petitioners, women who received obstetrical care at MUSC who were
arrested after testing positive for cocaine, argued that warrantless and
nonconsentual drug tests conducted for criminal investigatory purposes were
unconstitutional searches. The Supreme Court, in an opinion by Justice Stevens,
held that the drug tests were unconstitutional, concluding that no departure from
the Fourth Amendment's protections was justified in this case because the primary
purpose of the Charleston program was to use the threat of arrest and prosecution
to force women into treatment. |
| |
| Herring v.
Keenan, 218 F.3d 1171 (10th Cir. 2000) (and
corrected copy).
Defendant was plaintiff's probation officer. Plaintiff's estate alleged that
defendant violated his constitutional right to privacy by disclosing to his sister
and his employer that he was HIV positive. Defendant moved to dismiss citing
qualified immunity. That motion was denied; however, plaintiff's Eighth Amendment
and due process claims were dismissed. The Tenth Circuit decided that while there
was a right to privacy protecting health information, the law did not clearly
establish the right with probationers when these disclosures were made. |
| |
| Quintero v.
Encannacion, 2000 U.S. App. Lexis 30228 (10th Cir. 2000). Plaintiff was
involuntarily committed to Larned State Hospital from 1983 to 1995 when Kansas
Advocacy and Protective Services (KAPS) arranged for her release and return to
Mexico. Plaintiff sued for violation of her constitutional rights, wrongful
confinement, inadequate care and treatment, and improper administration of
psychotropic drugs. Defendants' Motions to Dismiss were denied, except for the
claims for right to habitation made against the individual physicians. The Tenth
Circuit found sufficient facts plead to overcome the motions and that plaintiff
demonstrated clearly established rights under Kansas law including an entitlement
to be released when she was no longer a danger to herself or others and a right to
have the nature and effects of her medications explained to her. |
| |
|
|
| |
| F. |
Comparative Negligence |
| |
| |
| Smith v. Kennedy, 2000 U.S.Dist Lexis 9897 (D.Kan. 2000). Plaintiff became
intoxicated at a party, drove his motorcycle and was involved in a single vehicle
crash. He later sued the physician who provided emergency room treatment.
Defendant sought to compare plaintiff's negligence and the negligence of the couple
hosting the party in this medical negligence case. Plaintiff's motion for summary
judgment on this issue was granted. The court found the couple hosting the party
did not undertake or owe plaintiff a duty. Plaintiff's refusal of the couple's
offers of assistance to get home demonstrated he did not rely upon the couple's
services negating any duty. The plaintiff's negligence in causing the need for
treatment could not be compared with defendant's negligence. It was irrelevant
because patients who injure themselves are entitled to non-negligent treatment.
The court, however, indicated that if the plaintiff impaired defendant's ability to
treat him, that conduct could be compared. |
| |
|
|
| |
| G. |
Damages |
| |
| |
| Strahley v.
Mercy Health Center of Manhattan, No. 99-2439-KHV (D.Kan. 11-9-00). Judge
Vratil followed Bates v. Hogg and extended it to private insurance. Plaintiffs
could not claim as damages any amounts written off or adjusted. Similarly, a
patient, under Virginia law, was not entitled to introduce evidence of portions of
medical bills that had been "written off" by virtue of provider agreements with the
patient's health plan. The collateral source rule did not require admission of the
evidence. Mitchell v. Hayes, 72 F.Supp.2d 635 (W.D.Va. 1999). See Bates v. Hogg,
22 Kan. App.2d 703 and Jackson v. City of Kansas City, 263 Kan. 143. |
| |
| Adams
v. Via Christi Regional Medical Center, 2001 Kan. Lexis 144 (Kan. 2001). Prior
to trial in this wrongful death and survival action, the plaintiffs settled with
the hospital for $170,000. The trial proceeded against the physician and
$1,800,000 was awarded for non-pecuniary wrongful death damages. Because the
parents received the statutory wrongful death limits from the hospital settlement,
the court did not enter judgment against the physician for wrongful death.
Plaintiffs appealed. The Supreme Court held that neither the wrongful death
statute nor the comparative negligence statutes addresses the issue. The court
went on to state that the cap was not a measure of damages but a limitation on
recovery of the damages. Thus, the hospital's settlement had no impact on the
right to recover from the physician. The physician also appealed contending that
lack of a physician-patient relationship. The court found that because the
physician discussed the patient's condition with her mother and offered advice, a
relationship existed. |
| |
| Arnold v. Holmes, 2000 U.S. Dist. Lexis 1971 (D.Kan. 2001). The district court
granted plaintiff's motion to amend adding a claim for punitive damages against a
nurse and two physicians. The court held that K.S.A. 60-3703 is procedural and not
applicable to federal court. |
| |
|
|
| |
| H. |
Discovery |
| |
| |
| Harvey v. Schultz, 2000 U.S. Dist. Lexis 19815 (D.Kan. 2000). Defendant filed
a motion to determine the reasonableness of plaintiff's expert's deposition fee and
the deposition fees of treating physicians. The court held that a $2,000 fee for a
two hour deposition was reasonable because the $500 hourly rate was not contested
by defendant and the deposition was scheduled for an indefinite duration during
normal office hours which prevented the doctor from scheduling patients for the
entire afternoon. Under those circumstances, requiring a four hour minimum fee was
reasonable. The treating physician's requested fees were $500 per hour. Defendant
argued that as fact witnesses they were entitled only the statutory fee. The court
disagreed adopting the view that treating physicians should be allowed a reasonable
fee in excess of the statutory amount but that nothing supported a $500 per hour
fee. There was no evidence of the fee's relationship to lost income. |
| |
|
|
| |
| I. |
Diversity Jurisdiction. |
| |
| |
| Weber v. Hays Medical Center, 2000 U.S. Dist. Lexis 9889 (D.Kan. 2000).
Defendant's motion to dismiss for lack of diversity jurisdiction was granted.
Plaintiff moved to Missouri July 8, 1999, and the complaint was filed December 1,
1999. The court held that at the time suit was filed there was no evidence that
plaintiff intended to make Missouri her permanent home. A social worker selected a
Missouri long-term care facility because there were no appropriate facilities in
Kansas. Plaintiff did not show she made the choice to move to Missouri and make it
her home and could not have made that choice due to her incapacity. |
| |
|
|
| |
| J. |
EMTALA |
| |
| |
| Bloomer v.
Norman Regional Hospital, 2000 U.S. App. Lexis 16099 (10th Cir. 2000).
Defendant moved to dismiss plaintiff's EMTALA claims. On appeal, the Tenth Circuit
treated the motion as one for summary judgment and granted the motion. The court
found that the plaintiff did not present necessary evidence to support the
jurisdictional facts that the hospital violated its own policies or that the
hospital had actual knowledge that plaintiff had an emergency medical condition.
The patient had visited the emergency room on several occasions, but the court
found that the fact she was not given the same examination on each visit was not
indicative of a failure to follow policies. |
| |
| Ingram v.
Muskogee Regional Medical Center, 235 F.3d 550 (10th Cir. 2000). Plaintiff
filed an EMTALA claim alleging the hospital failed to stabilize her decedent
daughter's medical condition prior to transfer. The Tenth Circuit affirmed that
district court's grant of summary judgment to the hospital. The court held that
the stabilization requirement of the EMTALA should be interpreted in a similar
manner as the screening requirement. Capacity to provide treatment to minimize the
risks of transfer should be measured by the hospital's standard practices. To
avoid summary disposition, the plaintiff had to have evidence that an existing
policy or procedure was violated. |
| |
| Phillips v.
Hillcrest Medical Center, 2001 U.S. App. Lexis 4600 (10th Cir. 2001). The
district court dismissed plaintiff's EMTALA claim. The Tenth Circuit upheld the
decision finding that the hospital's knowledge of the patient's insurance status,
although possibly relevant to explain a failure to follow policies, is alone
insufficient to establish an EMTALA violation. If the hospital examined a patient
consistent with its policies in an effort to determine the existence of an
emergency medical condition, the EMTALA was satisfied. |
| |
|
|
| |
| K. |
ERISA |
| |
| |
| Pittman v.
Blue Cross and Blue Shield of Oklahoma, 217 F.3d 1291 (10th Cir. 2000).
Plaintiff, a policy beneficiary of defendant, was denied coverage for high dose
chemotherapy and autologous bone marrow transplant under an amendment to the plan
listing it as an excluded treatment. The Tenth Circuit found that there was a
direct conflict of interest because Blue Cross was the insurer and administrator
and that there was an economic interest in denying claims to remain financially
viable and competitive. In reviewing the denial of benefits the court could weigh
the conflict as a factor in determining whether the decision was arbitrary and
capricious. Under the language of the contract and exclusions, the court found
high dose chemotherapy was not excluded, but the autologous bone marrow transplant
was excluded. |
| |
| Rekstad v.
First Bank System, Inc., 238 F.3d 1259 (10th Cir. 2001). Plaintiff was injured
and received disability under an ERISA plan. The plan administrator determined she
was no longer entitled to benefits, she appealed and was again denied benefits.
Plaintiff sued under the ADA and ERISA. Defendants received summary judgment on
the ADA claim, and plaintiff was granted summary judgment on the ERISA claim. The
court held the denial of benefits was unreasonable since it was based only upon one
particular doctor's examination. The case was then remanded to the plan
administrator. Both parties appealed. The Tenth Circuit found that the ERISA
decision was not a final order because it left the issue of damages
unresolved. |
| |
|
|
| |
| L. |
Evidence. |
| |
| |
| Frans v. Gavsman, No. 82,517 (Kan. App. 5-12-00)(unreported). In a dental
malpractice case where a patient suffered respiratory arrest in the dental chair,
the trial court refused plaintiff's request to introduce evidence from other
patients of the use of controversial techniques, limited cross-examination of the
defendant about the use of certain techniques, refused to allow rebuttal witnesses,
allowed expert testimony beyond the expert's report, refused a res ipsa loquitur
instruction, and made other evidentiary rulings adverse to the plaintiff. All of
the trial court's rulings were upheld on appeal. |
| |
| Kuhn v.
Sandoz Pharmaceuticals Corp., ___ Kan. ___, 14 P.3d 1170, 2000 Lexis 993 (Kan.
2000). After the birth of Jennifer Bishop's child, she was given a tablet of
Parlodel to prevent postpartum lactation. She died and the autopsy report listed
the probable cause of death as postpartum eclampsia or possible bacteremia.
Plaintiffs sued the manufacturer of Parlodel contending that based on FDA case
reports and Sandoz' history with the FDA, the Parlodel was a direct and proximate
factor in Ms. Bishop's death. The plaintiff named four expert witnesses with three
addressing causation. One opined that Ms. Bishop had been in unrecognized,
unstable preeclamptic state characterized by high blood pressure, proteinuria and
hyperreflexia which was markedly exacerbated by the Parlodel, setting off a chain
of events leading to her death. One opined that the drug increased peripheral and
intracranial pressures in a preeclamptic patient precipitating cerebral edema. The
third opined that there was sufficient time for the Parlodel to have exacerbated
Ms. Bishop's pregnancy induced hypertension. Sandoz countered that the experts
could not identify any human study to support their testimony, admit that there was
no evidence that Parlodel causes cerebral edema, were not aware of any study
demonstrating a statistically significant rise in blood pressure associated with
the use of the drug, admitted that there was no epidemiological evidence that a
single dose of the drug could cause seizure, hypertension or death or showing a
increased incidence of stroke, seizure, myocardial infarction or hypertension.
Based upon this testimony, the district court found that the experts did not meet
the Frye standards and granted summary judgment. The appellate court reversed
finding that the distinction between pure opinion testimony and testimony relying
on scientific technique promotes the right to a jury trial. The testimonies of
plaintiff's experts were distinguished from testimony traditionally subject to the
Frye test where a scientific principal, test or procedure developed by another is
used to offer a definitive conclusion on causation. |
| |
|
|
| |
| M. |
Malpractice Insurance |
| |
| |
| Wilson
v. Ramirez, 269 Kan. 371, 2 P.3d 7789 (2000). Plaintiff sought treatment from
defendant on several occasions. Plaintiff alleged that each occasion was a
separate act of negligence and a separate claim entitled to separate coverage by
defendant's insurer and the Fund. The district court held and the Supreme Court
concurred that there was one injury and one claim because the successive acts of
misdiagnoses only diminished plaintiff's chance of survival. Since the Fund is
liable only for payments of settlement or judgment, the issue of number of claims
is not pertinent. |
| |
|
|
| |
| N. |
Medicare |
| |
| |
| United States
ex rel Schwartz v. Coastal Healthcare Group, 2000 Lexis 26914 (10th Cir. 2000).
In a qui tam action brought under the False Claims Act, the Tenth Circuit affirmed
dismissal of the action. The Court found that the enhanced pleading requirements
of Fed. Rule Civ. Pro. 9(b) for fraud apply to the False Claims Act and are not
relaxed when the conduct involves numerous occurrences or extended periods of
time. |
| |
| United States
v. McClatchey, 217 F.3d 823 (10th Cir. 2000). McClatchey was convicted by a
jury of conspiracy and violating the Medicare Antikickback Act. The district court
granted his motion of acquittal finding there was no evidence of specific intent to
violate the act or alternatively that the defendant would be entitled to a new
trial based upon prejudicial variances in the indictment and the case presented to
the jury. The Tenth Circuit reversed. The court found that a jury, from the
evidence could "reasonably infer" that the defendant knowingly entered into
agreements to induce referrals. In evaluating instructions the Tenth Circuit
adopted the "one purpose" test for culpability under the Act. If one purpose of
the agreement is to induce referrals, then the Act is violated. |
| |
| South Valley
Health Care Center v. HCFA, 223 F.3d 1221 (10th Cir. 2000). HCFA imposed a
civil monetary penalty against South Valley for noncompliance with the Conditions
of Participation. The Tenth Circuit upheld the penalty finding that the
Secretary's findings of fact were supported by the evidence thus were to be deemed
conclusive. The ALJ found the facility was not in substantial compliance because
it failed to correct a systemic problem related to pressure sores, failed to
conduct training, failed to establish a wound care team and failed to monitor its
skin check program. The ALJ found the original penalty unreasonable and lowered
it, but the DAB reversed and reinstated the original $1,300 per day penalty. |
| |
|
|
| |
| O. |
Payment of Medical Expenses |
| |
| |
| Haskell
County Commissioners v. Sullivan, 27 Kan. App. 2d 852, 9 P.3d 588 (2000).
Prisoner was sued by the county for payment of medical expenses the prisoner
incurred while incarcerated. The court held the county had an obligation to
provide medical care and the county is responsible for care and maintenance of
prisoners. |
| |
| HealthOne, Inc. v. Columbia Wesley Medical Center, 2000 U.S. Dist. Lexis 14857
(D.Kan. 2000). HealthOne sued Wesley for breach of contract involving collection
of third party claims for the hospital. The court held that using an assignment to
recover from a third party tortfeasor an amount in excess of what the hospital
would receive under the hospital lien law would be contrary to public policy. |
| |
|
|
| |
| P. |
Peer Review |
| |
| |
| Unzueta v. Schlansky, No. 99-4162-RDR (D.Kan. 9-29-00). This case arose out of
the death of a Larned State Hospital patient during a restraint procedure. The
plaintiff requested documents to which Larned evoked the peer review and work
product privileges. The court found production of documents appropriate under
Adams v. St. Francis Regional Medical Center 264 Kan. 144, 955 P.2d 1169 (1998).
It further held that there was an insufficient nexus between taking statements
because of an inchoate threat of litigation perceived by legal counsel and the
present litigation. The threat of litigation must be real, imminent and of a
particularized nature. The court reviewed the documents and found typewritten
transcripts of interviews did not disclose counsel's mental impressions, but
handwritten notes did. Handwritten notes of the risk manager and Sentinel Event
Committee notes were discoverable because they were not taken at the direction of
counsel and would be redacted per Adams. |
| |
|
|
| |
| Q. |
Scope of Employment |
| |
| |
| Downey v. United States, 2000 U.S.Dist Lexis 19049 (D.Kan. 2000). Plaintiff
alleged that his psychiatrist violated boundaries in a state court action and that
the V.A. negligently supervised the psychiatrist in a federal court suit. The
government intervened in the state suit and it was removed to federal court. The
physician and the government moved to certify the scope of employment, but differed
in their interpretation of the term. Plaintiff and the physician formally
terminated treatment but continued a social relationship. The court restricted the
physician's acts within the scope of employment to be the formal therapeutic
relationship, dismissing the doctrine that once a psychiatrist is a treater, he is
always a treater. The court also found it was not foreseeable from the nature of
the psychiatrist's employment that he would cross boundaries. |
| |
|
|
| |
| R. |
Tax |
| |
| |
| In Re
Tax Exemption Application of Via Christi Regional Medical Center, 27 Kan. App. 2d
446, 6 P.3d 896 (2000). A Kansas hospital that owns a clinic which provides
primary care medical services but which has no beds and no 24-hour nursing services
will qualify for exemption from ad valorem taxation under K.S.A. 79-201, Ninth, if
it is organized for the humanitarian purpose of providing health services and if
the use of the property for which the exemption is claimed is substantially and
predominately related to the purpose of providing humanitarian services. |
| |
|
|
|
|
|
The Firm Profile |
News/Current Topics |
Contacts |
Home
515 South Kansas Avenue
Topeka, KS 66603-3999
Tel.: 785-233-0593
FAX.: 785-233-8870
gsep@goodellstrattonlaw.com
Copyright 2005 Goodell, Stratton, Edmonds & Palmer, L.L.P.
|
|
