Med Mal News
August 31, 2004
The latest happenings in the world of medical malpractice.
Physician Work Stoppage: The Legal Dilemma
August 31, 2004
Over the past year, with the medical malpractice crisis growing to encompass an ever-increasing number of states, physicians have wanted to implement strategies to force the issues out in the open and stimulate reforms. One strategy, which many physicians considered and far fewer implemented, was conducting some form of work stoppage. The concept of a work stoppage has generated a great deal of debate among physicians, medical societies, attorneys, law enforcement officials and legislators, both on legal and ethical grounds. What is the effect of antitrust law on these movements, and how can the outcomes of prior antitrust cases help to frame the legal debate concerning a physician work stoppage? If you have physician clients who are contemplating such actions as part of their efforts toward tort reform, what should you advise them?
HIPAA 2004
August 31, 2004
In last month's newsletter, we noted the dearth of significant case law with respect to the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA), save for three cases. In the first installment of this article, we looked at the case of <i>Northwestern Memorial Hospital v. Ashcroft</i>, 2004 U.S. App. LEXIS 5724 (7th Cir. 2004), in which the U.S. Court of Appeals for the Seventh Circuit rejected the notion that HIPAA created a new federal privilege regarding abortion medical records. That court ultimately quashed the subpoena that would have required the hospital to turn over to the U.S. government the abortion records sought, but on different grounds.
Government Report Blasts JCAHO's Hospital Oversight Record
August 31, 2004
The federal Government Accountability Office (GAO - formerly, General Accounting Office) has for several years been examining the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) to determine 1) the extent to which its pre-2004 hospital accreditation process identified hospitals not complying with Medicare requirements; 2) the potential of JCAHO's new (post-2004) process for improving the detection of deficiencies in Medicare requirements; and 3) the effectiveness of the Centers for Medicare and Medicaid Services' (CMS) oversight of JCAHO's hospital accreditation program. A report detailing the findings of that study, "Medicare: CMS Needs Additional Authority to Adequately Oversee Patient Safety in Hospitals," GAO-04-850, published July 20, levels some serious charges against JCAHO.
Client Profiles Version 7.0: Case Management Solution
July 30, 2004
Our firm wanted a program that would not only organize our case files electronically, but improve workflow and allow for easy access from a desktop as well as remotely. Because of our team approach to handling cases, we also needed a product that would allow each of us to see what tasks or issues another person was handling, without having to inquire as to the status or physically look at the file.
Reducing Frivolous Litigation
July 29, 2004
Frivolous lawsuits are one of the most problematic issues facing drug and medical device companies today. Many frivolous lawsuits are either ultimately dismissed for lack of causation after years of litigation and the expenditure of exorbitant sums of money in defense costs, or settled by corporations that are not culpable, but "litigation-weary." This waste of time and resources easily could be avoided if plaintiffs were required to submit an affidavit of merit with respect to product defect and/or causation at the inception of the case. Part One of a Two-Part Article.
Rogue Online Drugstores
July 29, 2004
In last month's newsletter, we looked at the problems posed by online pharmaceutical distributors that do not follow good pharmacy practice. These "rogue" pharmaceutical sites may be buying expired, substandard, contaminated or counterfeited products. Some sell without requiring customers to present prescriptions. The consumer may not be receiving proper medical oversight, which can result in administration of incorrect dosages, wrong or contraindicated drugs, or medication without adequate directions for use. These activities risk the reputations of pharmaceutical manufacturers and put them in greater peril of being sued by consumers whose adverse medical reactions could have been avoided. So, what can be done about it? Part Two of a Two-Part Article.
Verdicts
July 22, 2004
Recent rulings you need to know.
Specialized Health Care Courts
July 22, 2004
America is in a health care crisis -- a "perfect storm" of needless errors, unaffordable cost increases, declining access, inadequate accountability, and fearful and frustrated professionals. Some of the problems are unavoidable. No one can change, for instance, the fact that the baby boom population needs more health care as it ages. But our legal system is part of the problem, too: It imposes needless costs, deters safety improvements, and fosters widespread distrust among medical professionals. Changing the way medical malpractice lawsuits are decided would go a long way to improving health care for patients and providers alike.
HIPAA 2004: A Review of Significant Litigated Cases
July 22, 2004
<b><i>Part One of a Three-Part Article</i></b>. Since its enactment, with perhaps only three significant exceptions, the provisions of the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA) have not been litigated. In the majority of cases where HIPAA has been the subject of litigation -- less than 50 -- litigants have raised HIPAA provisions as an issue, but only tangentially as part of a "throw away" argument, or in a meaningful manner but where the answer was immediately clear from the case's inception. Three federal cases, however, merit analysis, since they go to the heart of HIPAA, the government's broad attempt to safeguard medical records in the electronic age.
