Holland & Hart Healthcare Law Blog

THE INTERNET, MYSPACE, MEDICAL PRIVACY AND FAMILY FEUDS.

        Two recent and unrelated cases this month involved the unlawful access to private medical records and the posting of them on the internet on MySpace in order to inflict pain in the prosecution of family feuds. Both feuds involved Asian families. In Hawaii, Rhonda Wong-Fernandez, a 22 year old mother of three small children, plead guilty to a felony charge of unauthorized use of a computer to access confidential records. Ms. Wong Fernandez was a friend of the victim’s sister in law who was feuding with the victim.  She obtained access to the medical records of the victim who was suffering from HIV at the Straub clinic and published them three times on MySpace. At one time she stated that “I hope she dies.” The victim did die in April.  Although the prosecutor requested a one month jail sentence, the judge disagreed and sentenced her to one year in jail, five years probation and 200 hours of community service. The judge ordered her taken into custody immediately and refused a request to defer the start of her sentence until she could provide for her 5 month old child.

     

Failed Abortion Leads To Viable Claim For Wrongful Birth of Healthy Child.

 In Dotson V. Bernstein, P.C., M.D., (Colo. App. , No. 08CA 0020 2009), the Colorado Court of Appeals reversed a non-suit granted by the District Court, to hold that Dionne Dotson had stated an actionable claim for negligence and damages against Dr. Dell L. Bernstein for the wrongful birth of a healthy child. as the result of a failed abortion. The court, while recognizing that the child would not have a claim for wrongful life, no matter how impaired or imperfect it might be, determined that the parent had a judiciable claim for foreseeable damages including medical expenses, pain and suffering and the medical complications resulting from the delivery.

LITERALISM RULES IN RESPONDING TO MEDICAL BOARD QUESTIONAIRE.

Dr. Savitra Bhama, a psychiatrist born in the former West Pakistan in 1934 has a license to practice medicine in Michigan and Kentucky. She applied for a license to practice in the State of Ohio. In the questionnaire that the State Medical Board of Ohio required to be submitted along with her application she was asked whether she had ever been terminated or resigned from a position she held or was ever asked to resign. She answered “no” to the question after interpreting the question in the context of her perception of the interests of the board to mean termination or resignation related to the actions related to patient care. The literal answer to the question was “yes.” Dr. Bhama argued that she had no intent to deceive the board and cited as evidence the fact that she disclosed her complete employment history and given the number of positions the board would have known that she terminated or was terminated from several positions. The Ohio board determined that her answer constituted a false, fraudulent, deceptive, or misleading statement” in order to secure a license and denied her application.

Exclusive Anethesia Arrangement Fails Personal Services Exemption Under Stark.

Normally, anesthesia services contracts do not receive a lot of scrutiny with respect to Stark or Anti-kickback Statute ("AKS") compliance. Recently, the federal 3rd Circuit Court of Appeals had a chance to review and reverse a summary judgment granted in favor of a hospital and its anesthesia providers who claimed that they were protected by the "personal services" exemption from Stark and the AKS. The Plaintiff in the Qui Tam lawsuit, United States  ex. rel. Kosenske v. Carlisle HMA, Inc., 3rd. Cir.,No. 07-4616, 2009), was a member of the anesthesia group which entered into an exclusive contract with the Carlisle Hospital for anesthesia services. The hospital provided free space and services to the anesthesia group, which is not an uncommon practice because that is generally considered part of the "arms length"negotiation price for the anesthesia services.

MT. Constitution Protects Doctor Assisted Suicide

The United States Supreme Court has thus far declined to find a constitutional right to doctor assisted suicide under either the Due Process Clause (Washington v. Glucksberg, 521 U.S. 702 (1997)) or under the Equal Protection Clause (Vacco v. Quill, 521 U.S. 793 (1997)). There are a very few number of states that have incuded the Right to privacy in their State Constitutions. Montana is one of them. In Robert Baxter et alv. State of Montana, Cause No. ADV-2007-787, an action brought by Mr. Baxter who has a terminal condition, several physicians and Compassion & Choices, an advocacy group, against the State to declare the application of state homicide statutes to physician assited suicide to be unconstitutional. District Court Judge, Dorothy McCarter from Lewis & Clark County issued an opinion and order earlier this month finding that the Montana Constituion protected doctor assisted suicide, wherein a doctor provides drugs for a terminal patient, who administers the lethal drug and the homicide statutes could not punish the doctor for his or her assistance.

Physician Recruitment: Recruited Doc Bites Group in Arkansas.

Many physician recruitment efforts are three party arrangements where a physician group either solicits a hospital to help support a newly recruited physician or a hospital solicits a group as a place to practice for a new physician recruited by the hospital. Typically in these deals the group agrees to accept the recruit into its practice and to accept a guaranteed income payment from the hospital for a year.  The recruit accepts a salary from the group.  The hospital’s subsidy covers expenses and some level of income for the first year less the production of the recruit.  The recruit is required to remain practicing in the hospital’s market for two or three additional years. The amount of any subsidy is folded into a note which is forgiven by the hospital each year prorate to the fulfillment of the practice requirement.  The recruit and the practice group are jointly and severally liable on the note as it is forgiven.

California Nixes Medical Discrimination By Religous Doctors.

The California Supreme Court has ruled that physicians may not discriminate and withhold  non-emergency medical care based upon their religious beliefs in violation of the California Unruh Civil Rights Act, which prohibits discrimination by businesses based on sexual orientation.  In North Coast Women's Care Medical Group, Inc. et al. v. San Diego Superior Court, a lesbian, Guadalupe T. Benitez brought suit against the physician group and two individual doctors for refusing to provide intrauterine insemination using unfrozen semen from a friend to assist her obtaining pregnancy. This is a medical procedure in which a physician threads a catheter through a patient's cervix and inserts semen through the catheter into the patient's cervix. One of the physicians claims that her religious belief's in question have more to do with the patient being unmarried than a lesbian, but that is disputed by the plaintiff.

Supreme Court Holds Arbitration Agreement Under F.A.A.Cannot Be Reviewed For Erroneous Conclusion of Law

There is a growing tendency to incorporate mandatory arbitration clauses in employment and other agreements as an alternative mechanism to resolve disputes. Some arbitration agreements go so far as to self define the scope of judicial review of an arbitrator’s decision. Not infrequently, there is a tension in a case between the equities or basic fairness and the law. An arbitrator, after all, is supposed to be arbitrary. He or she is supposed to quickly and economically cut through the "Gordian knot" of a dispute and do what is right.

International Patient Dumping by Hospitals Scored in New York Times

On Aug. 3, 2008, the New York Times ran a front page feature story chronicling the apparently widespread practice by U.S. hospitals in dumping illegal (and sometimes legal) immigrants abroad in order to avoid the high cost of treatment and maintenance in the United States.  The feature, “Deported by U.S. Hospitals,” written by Deborah Sontag, largely follows the medical and legal passage of one Luis Alberto Jiménez, a Guatemalan illegal, who was working as a gardener in Stuart, Florida when he was struck by a drunken Floridian, suffering severe traumatic brain injury.

Wisconsin Supreme Court Orders HMO to

In Summers v. Touchpoint Healthplan, Inc., Case Number 2005-AP 2643 (Wisc. May 28, 2008), the Wisconsin Supreme Court ordered Touchpoint to provide coverage for an "experimental" high dose radiation and stem cell recovery procedure for a child suffering from a rare brain tumor. Surgeons removed the tumor and the child’s doctors recommended the high dose radiation treatment with stem cell recovery as the best of the follow-up options to assure full recovery. The problem was that the procedure was "experimental" as defined in the policy and was excluded from coverage under the policy. Included in the plan’s definition of "experimental" was any procedure that was the "subject of any ongoing Phase I or Phase II clinical trial."