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.

Evil In Contamination of Food and Medicine.

It is hard not to applaud the Chinese for their decision to execute officials for the contamination of milk sold domestically and abroad, even for those generally opposed to the death penalty. Unfortunately, the Chinese may have been motivated more by the impact of the unfavorable publicity than real concern about the larger moral evil lurking like a cancer in the cells of commerce. Two articles appearing in the New York Times today underscore the metastasis of that evil in the world community. One story involves Nigeria and the other the United States.

Pfizer's "Double Blind" Bextra Bind -The Value of Clinical Data

Shortly before Christmas a Santa Clara County, California jury entered a $38 Million Dollar Judgment Against Pfizer, Inc. for allegedly stealing clinical data from the Ischemia Research and Education Foundation ("IREF"), concerning its acute arthritic pain drug, Bextra. Pfizer pulled Bextra from the market in 2005, followig concerns about its safety for heart patients. Not long ago Pfizer entered into a $900,000,000.00 product liability settlement for Bextra and for Cerebrex, both Cox 2 inhibitor drugs that raised safety concerns. IREF filed its suit in 2004, claiming that Pfizer obtained access to the clinical data developed by IREF after its negotiations with IREF collapsed through the device of a contract with an IREF employee and statistican, Ping Hsu. IREF is a non-profit research organization founded by Dr. Dennis Mangano, PhD, M.D., in 1987.IREF has developed a substantial data base of clinical information through the cooperation and participation of over 300 research centers around the world in the twenty plus years of its existence. There was apparently some evidence presented to the jury that Pfizer and Mr. Hsu destroyed or otherwise attemped a coverup of the use of the IREF information. Pfizer asserts that it has been unjustly caught up in the dispute between Mr. Hsu and IREF and denies any theft of the IREF information. It will likely appeal.

Federal Tort Claims Act: Switched at birth in '46, To Late To Complain Now.

Rowena Madrigan and Beverly Bowker claimed that they were wrongfully switched at birth. They and Ms. Bowker's real father, Michael Ryan sued the United Stated under the Federal Tort Claims Act for negligence at Sanding Rock Hospital in Ft. Yates, North Dakota, in sending Ms. Bowker and Ms. Madrigan home with the wrong folks in 1946. The "girls" heard rumors throughout their lives that they had be switched at birth and when they met sometime before 1973 they noticed family resemblances in the other families. They discussed paternity blood tests in the 1970s but deferred allegedly because they were unreliable. The plaintiffs submitted to DNA tests in 2002 and again in 2004.The aggrieved parties filed administrative actions against the United States in 2003 and 2004. These were dismissed because of the running of the two year statute of limitations on federal tort claims.  In Ryan et al. v. United States of America No. 07-1994 (8th Cir., 2008), the Court of appeals affirmed despite claims by the Plaintiff that they didn't know for sure until the DNA testing.

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.

Colorado Appeals Court finds Physician can be vicariously responsible for negligence of covering physician.

In Hall v. Frankel,, M.D. and Hall v. Robinson, M.D. et al, 05 CA 2696 and O6CA1774, the Colorado Court of Appeals found that a Physician can be vicariously liable for he negligence of a covering physician. Walter G. Robinson, M.D. performed knee replacement surgery on Dennis Hall on June 4, 2002.  Mr. Hall died of blood clots to his heart and lungs on June 12, 2002.  Dr. Fujisaki, another orthopedic surgeon in Dr. Robinson’s professional corporation “covered” Mr. Hall’s past surgical care between June 6 and June 12, 2002.  The jury found Dr. Robinson individually negligent and also responsible for the negligence of Dr. Fujisaki.

Appeals Court Reverses Poliner Judgment

The Fifth Circuit Court of Appeals has reversed the $33 Million Dollar Judgment awarded the plaintiff in Poliner v. Texas Health Systems. The Poliner case raised a lot of eyebrows both because of the amount of the original damages award of $360 Million Dollars and its success in overcoming immunity claims under the Health Care Quality Improvement Act of 1986 ("HCQIA"). The trial court reduced the award to $33 Million Dollars prior to the appeal.   Dr. Poliner, an interventional cardiologist, claimed that he was forced to agree to an abeyance of his privileges in lieu of a summary suspension and was prevented from performing procedures in the the defendant's catherization laboratory while an investigation was pending, only posted about $10,000 dollars in actual damages. His case went to a jury solely on defamation grounds.

"Arbitrition"* In Healthcare Disputes.

           In 1991, the United States Supreme Court gave strong impetus to the enforcement of arbitration agreements in employment contracts when it held that unequal bargaining power between employers and employees was an insufficient reason to hold that arbitration contracts are never enforceable in the employment context.  In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) the court held that an age discrimination act claim can be subject to compulsory arbitration. (*The overlay of cumbersome judicial like process on equitable decision making.)