Med Mal News

Proposed Legislation Would Protect Volunteer Health Care Providers

U.S. Senator Mike Enzi (R-WY) introduced a bill in the Senate July 28 that is meant to protect medical professionals from professional liability claims when they volunteer their services to patients who cannot afford medical care. The bill, S 3354, called the Volunteer Health Care Program Act, would give grants to the states so that they can set up programs to assume much of the medical liability risks that would normally be shouldered by individual health care providers. It is hoped that, with the risk of malpractice liability removed, dentists, physicians, nurses and others will be more willing to offer care to indigent, low-income and under-insured patients at clinics and in underserved communities.

Emergency Room Wait Times Up

The Centers for Disease Control reports that average wait times for patients seeking emergency medical care in hospital emergency rooms increased from 38 minutes to nearly an hour (56 minutes) between 1996 and 2006. The extended waits can be attributed to a number of factors, including the increasing age of the nation's population, since older people generally need more medical care and emergency services than do younger people. More people are also bypassing the doctor's office in favor of presenting themselves directly to an emergency room for hospital admission; emergency departments accounted for the admission of about 50% of non-obstetric hospital patients in 2006, as compared to just 36% in 1996.

Punitive Damages Not Recoverable in Hospital Doctor's Suit over Dismissal

A three-judge appeals panel in New Jersey threw out a doctor's award of punitive damages in his breach-of-contract employment suit because the case did not meet New Jersey's requirement for punitive damages in contract cases, set out in Sandler v. Lawn-A-Mat Chemical & Equipment Corp., 141 N.J. Super 437. That requirement is that there be an “unusual relationship between the parties reflect[ing] a breach of trust beyond the mere breach of a commercial contract.” The doctor who was allegedly forced out of his position at Cooper University Hospital in Camden, NJ, Dr. Peter Kurnik, had been serving for several years as director of the hospital's cardiac department, with a contract covering his employment at the hospital until September 2002 and his term as director through May 2001. Dr. Kurnik's directorship was not renewed in 2001, which forced him to resign as an employee, he claimed.

Although punitive damages are usually unavailable to contract claimants, Burlington County Superior Court Judge Marie Bell ruled in 2006 that Dr. Kurnik's suit involved pubic policy considerations ' specifically, that his forced departure put patients at risk ' so punitive damages could be awarded. The jury awarded him $4.68 million in punitive damages, an amount later cut to $1.5 million. The three-judge appellate panel ruled this July, however, that as no evidence was presented that any patients were actually harmed by the doctor's ouster, the punitive damage award could not stand. Rather than finding that there was a “special relationship” between the parties or a public policy issue greater than the contract dispute, the appellate judges said the trial judge “allowed plaintiff's claim to go forward solely because she found defendant's conduct here to be heavy-handed and in direct contravention of plaintiff's contractual rights.” Also finding error in the trial judge's charge to the jury, the appellate court threw out the breach of contract finding and the resulting $570,000 compensatory damage award and remanded Kurnkik v. The Cooper Health System, A-4686 for retrial on breach of contract only.

HHS and Health Care Provider Agree on Plan to Protect Health Information

The U.S. Department of Health & Human Services (HHS) announced July 17 it has entered into a Resolution Agreement with Seattle-based Providence Health & Services (Providence) to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. The rules protecting patient privacy are enforced by HHS' Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS), which have resolved to date more than 6,700 privacy and security rule cases, generally by requiring entities in violation of the rules to change their policies. The agencies stepped up their actions for the first time with the Providence case, requiring the more formal Resolution Agreement, in which Providence agreed to pay $100,000 and implement a “corrective action plan” detailing how they will protect private patient information in future. The action came in response to Providence's loss of laptop computers and electronic information backup files that contained private patient information.

Kerry Weems, the acting administrator of CMS, said in an HHS release, “This resolution confirms that effective compliance means more than just having written policies and procedures. To protect the privacy and security of patient information, covered entities need to continuously monitor the details of their execution, and ensure that these efforts include effective privacy and security staffing, employee training and physical and technical features.”

Indicating that comparably strong actions may be taken in future against other medical care providers and facilities, Winston Wilkinson, the director of the OCR, stated in a release, “We are committed to effective enforcement of health information privacy and security protections for consumers. Other covered entities that are not in compliance with the Privacy and Security Rules may face similar action.”

The Resolution Agreement and Corrective Action Plan can be accessed at: http://www.hhs.gov/ocr/privacy/enforcement/.

Proposed Legislation Would Protect Volunteer Health Care Providers

U.S. Senator Mike Enzi (R-WY) introduced a bill in the Senate July 28 that is meant to protect medical professionals from professional liability claims when they volunteer their services to patients who cannot afford medical care. The bill, S 3354, called the Volunteer Health Care Program Act, would give grants to the states so that they can set up programs to assume much of the medical liability risks that would normally be shouldered by individual health care providers. It is hoped that, with the risk of malpractice liability removed, dentists, physicians, nurses and others will be more willing to offer care to indigent, low-income and under-insured patients at clinics and in underserved communities.

Emergency Room Wait Times Up

The Centers for Disease Control reports that average wait times for patients seeking emergency medical care in hospital emergency rooms increased from 38 minutes to nearly an hour (56 minutes) between 1996 and 2006. The extended waits can be attributed to a number of factors, including the increasing age of the nation's population, since older people generally need more medical care and emergency services than do younger people. More people are also bypassing the doctor's office in favor of presenting themselves directly to an emergency room for hospital admission; emergency departments accounted for the admission of about 50% of non-obstetric hospital patients in 2006, as compared to just 36% in 1996.

Punitive Damages Not Recoverable in Hospital Doctor's Suit over Dismissal

A three-judge appeals panel in New Jersey threw out a doctor's award of punitive damages in his breach-of-contract employment suit because the case did not meet New Jersey's requirement for punitive damages in contract cases, set out in Sandler v. Lawn-A-Mat Chemical & Equipment Corp., 141 N.J. Super 437. That requirement is that there be an “unusual relationship between the parties reflect[ing] a breach of trust beyond the mere breach of a commercial contract.” The doctor who was allegedly forced out of his position at Cooper University Hospital in Camden, NJ, Dr. Peter Kurnik, had been serving for several years as director of the hospital's cardiac department, with a contract covering his employment at the hospital until September 2002 and his term as director through May 2001. Dr. Kurnik's directorship was not renewed in 2001, which forced him to resign as an employee, he claimed.

Although punitive damages are usually unavailable to contract claimants, Burlington County Superior Court Judge Marie Bell ruled in 2006 that Dr. Kurnik's suit involved pubic policy considerations ' specifically, that his forced departure put patients at risk ' so punitive damages could be awarded. The jury awarded him $4.68 million in punitive damages, an amount later cut to $1.5 million. The three-judge appellate panel ruled this July, however, that as no evidence was presented that any patients were actually harmed by the doctor's ouster, the punitive damage award could not stand. Rather than finding that there was a “special relationship” between the parties or a public policy issue greater than the contract dispute, the appellate judges said the trial judge “allowed plaintiff's claim to go forward solely because she found defendant's conduct here to be heavy-handed and in direct contravention of plaintiff's contractual rights.” Also finding error in the trial judge's charge to the jury, the appellate court threw out the breach of contract finding and the resulting $570,000 compensatory damage award and remanded Kurnkik v. The Cooper Health System, A-4686 for retrial on breach of contract only.

HHS and Health Care Provider Agree on Plan to Protect Health Information

The U.S. Department of Health & Human Services (HHS) announced July 17 it has entered into a Resolution Agreement with Seattle-based Providence Health & Services (Providence) to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. The rules protecting patient privacy are enforced by HHS' Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS), which have resolved to date more than 6,700 privacy and security rule cases, generally by requiring entities in violation of the rules to change their policies. The agencies stepped up their actions for the first time with the Providence case, requiring the more formal Resolution Agreement, in which Providence agreed to pay $100,000 and implement a “corrective action plan” detailing how they will protect private patient information in future. The action came in response to Providence's loss of laptop computers and electronic information backup files that contained private patient information.

Kerry Weems, the acting administrator of CMS, said in an HHS release, “This resolution confirms that effective compliance means more than just having written policies and procedures. To protect the privacy and security of patient information, covered entities need to continuously monitor the details of their execution, and ensure that these efforts include effective privacy and security staffing, employee training and physical and technical features.”

Indicating that comparably strong actions may be taken in future against other medical care providers and facilities, Winston Wilkinson, the director of the OCR, stated in a release, “We are committed to effective enforcement of health information privacy and security protections for consumers. Other covered entities that are not in compliance with the Privacy and Security Rules may face similar action.”

The Resolution Agreement and Corrective Action Plan can be accessed at: http://www.hhs.gov/ocr/privacy/enforcement/.