Hasan v. Garvar-Protecting Patients’ Rights or Ripping Rights Away From Physicians?

Author:  Amy L. Miles

On December 20th, the Supreme Court of Florida released an unprecedented, broadly-sweeping opinion that appears to strip from non-defendant physicians the right to consult with an attorney when they are called upon to give testimony on their treatment of a plaintiff/patient. In the opinion authored by Justice Lewis, Hasan v. Garvar, Case No. SC10-1361 (Dec. 20, 2012), the Court relied on Florida’s physician-patient confidentiality statute to hold that a patient’s privacy trumped the physician’s right to consult with an attorney about the circumstances surrounding the physician’s treatment of the patient even if the consultation was limited to avoid disclosing any confidential patient information.

In Hasan, a patient sued his dentist for failure to diagnose his dental condition.  After seeing his dentist, the patient had visited an oral and maxillofacial surgeon, who treated the patient.  The medical malpractice carrier for the dentist and the surgeon was the same insurance company.  During the course of the suit against the dentist the patient sought to take the surgeon’s deposition.  The surgeon had not been named as a defendant.  Accordingly, the insurer retained an attorney to consult with the surgeon for an ex-parte, pre-deposition conference.  The attorney was not the same attorney, or even from the same law firm, that had been retained to defend the dentist.

Ruling on the patient’s challenge to that pre-deposition conference, the trial court placed limitations on the consultation that prevented the surgeon from disclosing confidential patient information, but otherwise permitted the surgeon to meet with the attorney.   The Fourth District Court of Appeal  affirmed that order.  Quashing the Fourth District opinion, the Supreme Court held that “the physician-patient confidentiality statute,” section 456.057, Florida Statutes (2009), “prohibits a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant’s insurance company.”  The Court determined that the meeting is prohibited “whether or not they intend to discuss privileged or non-privileged matters without measures to absolutely protect the patient and the privilege.”      cet5007

Based on prior cases that prevented only the defendant’s counsel from ex parte meetings with a non-party physician, the Hasan opinion seems to broaden that prohibition to any counsel at all.  The Supreme Court stated that the legislature’s intent in enacting section 456.057 was to “safeguard privileged medical information and to strictly control the dissemination of a Florida patient’s medical information.”

The Hasan opinion left the actual extent to which a nonparty physician may consult with any counsel prior to a deposition unclear.  Under the facts in Hasan, the surgeon’s counsel was retained by the defendant’s insurer because both physicians were insured by the same company.   Thus, the court found that even though the counsel the insurer selected to consult with the surgeon was not defense counsel, “counsel provided by the defendant’s insurer also presents the same compromised interest as other outsiders, and, therefore, is barred from meeting with a nonparty treating physician.”  The Court’s holding expressly prohibited only “ex parte meetings between a patient’s nonparty treating physician and counsel provided by the defendant’s insurance company.”  Nevertheless, the Court seemed to prohibit a physician’s consultation with any counsel by its statement that “ex parte meetings between a nonparty treating physician and outsiders to the patient-health care provider relationship are not permitted.”  (Emphasis added).

In prohibiting ex parte meetings with counsel provided by the insurer, the Court also stated that privileged medical information is “not limited to information made ‘in the course of the care and treatment.’”   Therefore, even if the meeting was limited to issues outside of the actual patient care, the Court prohibited the consultation.   The Court was concerned that the insurer’s provision of counsel to the surgeon would foster “an environment conducive to inadvertent disclosure of privileged information.”

Of course, under the statute, a nonparty physician is not prohibited from consulting with counsel when he or she “reasonably expects to be named as a defendant.”  Under the holding in Hasan, future court decisions may be required to define what a reasonable expectation of being named a defendant would be in order to clarify nonparty physicians’ right to consult with counsel before giving deposition testimony.

The Supreme Court rejected arguments that its interpretation of the statute infringed on a physician’s First Amendment right to free speech or right to counsel, finding that if the physician becomes a party to a medical negligence legal action, he or she may discuss confidential patient information with an attorney.

In his dissent, in which Justice Canady concurred,  Justice Polston characterized the majority opinion as “so breathtakingly broad that it even forbids the nonparty physician from consulting a lawyer that she may choose to hire independently.”  Justice Polston opined that “the majority wrongfully prohibits a physician from consulting with her own lawyers, paid for by her insurance, by assuming that ethical violations will occur.”  He stated, “I am unaware of any other circumstance where this Court has prohibited someone from consulting a lawyer for legal advice.”  “There is no reason in this case to question whether the physician and her lawyer would do anything other than abide by the court order and their respective ethical obligations.”

ACA in The Supreme Court – The Closing Arguments

Author: Marc L. Penchansky

Yesterday, the Supreme Court of the United States heard the final two arguments concerning the Affordable Care Act (“ACA” or “Act”). The day’s first argument concerned whether the remaining provisions of the Act could stand if the Supreme Court ruled that the mandate was unconstitutional. For more information on that argument, click here. The final argument concerned the extension of Medicaid benefits codified in the Act.

Medicaid is a cooperative program between the federal government and the States where the Federal government shares the costs of providing health care to the indigent with the States. In exchange, the States agree to comply with the requirements of the Medicaid Act and its implementing regulations. In an effort to insure as many Americans as possible, the ACA extended Medicaid coverage beginning in 2014 to individuals with incomes up to 133% of the poverty level. 42 U.S.C. § 1396a(A)(10)(a)(i)(VIII). It is estimated that this extension would lead to an additional 16 million people on Medicaid. For the first three years, the federal government must pay all of the additional costs. In 2017, the federal government’s share is lowered to 95%, and over the next two years the federal share diminishes one percent per annum. In 2020, the allocation becomes fixed at 90% paid by the federal government and 10 % paid by the States. 42 U.S.C. § 1396d(y). This level of federal support far exceeds the typical federal contribution rate of 50% to 83%. See 42 U.S.C. 1396(b); Government’s Brief at p. 9.

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Supreme Court Considers its own Jurisdiction to Determine the Constitutionality of the Affordable Care Act

By Amy L. Miles

This morning, the United States Supreme Court heard the first day of Oral Arguments surrounding the controversy over some provisions of the Obama Administration’s healthcare reform act known as the Affordable Care Act (ACA). In its first round, the Court must determine whether it has the jurisdiction to consider the challenges to the Act at all. The ACA, among other things, contains an “individual mandate,” which will require U.S. taxpayers above a certain minimal income threshold to maintain healthcare insurance or to pay a penalty for failing to do so. In the case of Department of Health and Human Services v. Florida, which is a consolidation of challenges to the ACA from lawsuits brought in 26 states, the court will be considering whether, among other things, the individual mandate is a constitutionally permitted exercise of legislative power. As the ACA is written, the individual mandate goes into effect in 2014 and will be fully implemented by 2016. Therefore, the lawsuits challenging the mandate were in the form of seeking injunctive relief from the courts—asking them to prohibit the federal government from implementing the mandate before it goes into effect.

The jurisdictional question that the Supreme Court must answer first is whether it has the authority to issue the injunction the various states are seeking. Under the federal tax Anti-Injunction Act (AIA), courts have absolutely no power to prevent the federal government from assessing or collecting taxes before they are actually assessed or collected. Of course, once a taxpayer is liable for paying an assessment, he or she has a right to bring a refund action in federal court. The determination of the Court’s power to decide this case will revolve around whether the penalty required by the ACA is properly classified as a tax, which would divest the Court of its injunctive power before the law is in effect, or whether it is some other non-tax penalty.

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Doctors Forbidden From Sharing Information Learned About Chemicals Used in Fracking

Author: Karen L. Tucci

A new Pennsylvania law, an amendment to Title 52 (Oil and Gas) of the Pennsylvania Consolidated Statutes, requires that companies provide to a state-maintained registry the names of chemicals and gases used in fracking. It also forbids physicians, and other health care providers, from obtaining information on potentially harmful chemicals used in fracking, if that information is claimed to be a trade secret or confidential proprietary information of the company, unless the physician enters into a confidentiality agreement.

Fracking is the method of forcing water, gases, and chemicals at tremendous pressure of up to 15,000 pounds per square inch into a rock formation as much as 10,000 feet below the earth’s surface to open channels and force out natural gas and fossil fuels. The Marcellus Shale extends beneath the Allegheny Plateau, through Southern New York, much of Pennsylvania, east Ohio, West Virginia, and parts of Maryland and Virginia. It is one of the nation’s largest sources of natural gas mining. Pennsylvania has about 5,255 wells, as of the beginning of March 2012, with dozens being added each week. Over the expected life time of each well, companies may use as many as nine million gallons of water and 100,000 gallons of radioactive isotopes within a four to six week period. About 650 of the 750 chemicals used in fracking operations are known carcinogens.

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E-Discovery Lesson: You don’t want to be the next “McDermott”!

Author: E. Patrick Buntz

J-M Manufacturing Company, Inc. v. McDermott Will & Emery, California Superior Court, Los Angeles County – Central District, Case No.: BC 462832, is believed to be the first e-discovery legal malpractice lawsuit. McDermott Will & Emery, is an international law firm founded in Chicago in 1934 that houses more than 1,000 attorneys.

U.S. ex rel Hendrix v. J-M Manufacturing Co., Inc., US District Ct., CD California, Case No.: ED-CV06-000555, is the underlying case in which the legal malpractice allegedly occurred. This is a qui tam action (False Claims Act/whistleblower) brought by numerous governmental agencies based on allegations that J-M sold defective PVC pipe for use in water and sewage systems. If true, the qui tam actions could lead to the recovery of significant sums of money. The “Hendrix” referred to in the underlying case is an engineer who worked for J-M and who allegedly was fired one week after writing a memorandum that indicated the PVC pipe failed applicable product safety standards tests.

In the McDermott case J-M alleged that McDermott failed to supervise its e-discovery vendors and contract lawyers, and, as a result, almost 4,000 of J-M’s privileged documents were inadvertently produced to the other side. J-M filed its First Amended Complaint on July 28, 2011 and asserted that it had retained McDermott because the firm held itself out as knowledgeable in the area of qui tam actions and e-discovery. J-M claimed McDermott had billed on an hourly basis as high as $925 an hour.
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Pinning Physician Negligence on Hospitals in Florida Still as Unclear as Ever

Author: Derek M. Daniels

In the recent case of Newbold-Ferguson v. AMISUB, Inc. d/b/a North Ridge Medical Center, 2012 WL 555395 (Fla. 4th DCA 2012), the Fourth District Court of Appeals chimed in yet again on the issue of holding hospitals responsible for physician negligence under the guise of the doctrine of non-delegable duty. For some reason, the 4th DCA seems particularly interested in this issue, and their latest iteration of strained logic effectively does nothing more than stir already muddied water.

The patient went to the hospital for back surgery and died the next day from cardiac arrhythmia. Although not clear from the opinion, it appears the crux of the claim was the emergency room physician failing to timely respond to the code. As to the hospital, the plaintiff alleged directly liability for the ER physician’s negligence based on a “non-delegable duty to supervise…so that competent and careful medical personnel are provided….” On this claim, the trial court determined that the non-delegable duty as alleged did not exist and in allowing plaintiff to amend to allege a viable claim against the hospital instructed counsel that the issue was “the non-delegable duty to diligently determine that competent physicians are afforded house privileges or staff privileges.” In what sounds like a bizarre ruling, the trial court dismissed plaintiff’s next attempt at alleging a claim against the hospital but permitted the case to go to trial under the prior complaint with a ruling that all references to the emergency room physician be redacted. At trial, plaintiff was precluded from introducing evidence that the ER doctor deviated from the standard of care, and the jury returned a verdict in favor of the hospital.
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The Third Circuit Upholds Arbitration Clause in Nurse’s Employment Contract

Author: Marc L. Penchansky

The enforceability of arbitration clauses has become a hot topic. Last month we wrote on how the Supreme Court of the United States made it clear that the States were not free to ignore the Federal Arbitration Act’s preference for arbitration due to some contrary public policy. The highest appellate court of West Virginia had ruled that arbitration clauses in nursing facility residency contracts were not enforceable as they were against the State’s public policy.

On Wednesday, the Third Circuit also had an opportunity to consider the Federal Arbitration Act. In Quilloin v. Tenet Healthsystem Philadelphia, — F.3d —-, 2012 WL 833742 (C.A.3 (Pa.), March 14, 2012), the Third Circuit strongly supported the federal preference for arbitration clauses when it upheld an arbitration clause in a hospital employee’s contract.

Janice Quilloin twice entered into an employment agreement with Tenet Healthsystem to work as a registered nurse. Nurse Quilloin’s employment contracts set forth individualized arbitration as the sole avenue to resolve most disputes. Eventually, Nurse Quilloin filed a collective action in federal district court against Tenet under the Fair Labor Standards Act, as well as a state-based class action and common law claims. Tenet filed a motion to compel obedience with the agreement to arbitrate.
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Making Copies: Pennsylvania Supreme Court Agrees to Hear Challenge as to Proper Method for Calculating Cost of Copying Medical Records

Author: Marc L. Penchansky

Pennsylvania’s Medical Record Act addresses the medical record request process. The Act requires the records holder to provide to the requestor the “estimated actual and reasonable expenses of reproducing the charts and records.” 42 Pa.C.S. § 6152(a)(1). The Act further lists acceptable prices that the medical care providers or their designees may charge for searching, retrieving and copying those records. See id. at 6152(a)(2)(i). If a plaintiff suspects a violation of the Act, he may bring a breach of contract claim for violations of this Act.

The law firm of Chiurazzi & Mengine, LLC filed several class action suits against medical facilities alleging that these facilities charged plaintiffs an amount in excess of the maximum charges permitted by the Act. The law firm did not allege that the charges exceeded the statutory cap set by the Act but alleged that the charges exceed what were the actual and reasonable expenses of reproducing the medical records. The Supreme Court of Pennsylvania recently agreed to hear one of the class action suits. Among the issues designated for appeal was the following:

Does the Medical Records Act [MRA], 42 Pa.C.S. § 6152(a)(1) and (a)(2)(i), require medical records reproducers to disclose their estimated actual and reasonable expenses of reproducing the charts or records, and to limit their copying charges to these amounts or the statutory ceiling rates, whichever is less. See Wayne M. Chiurazzi Law Inc., et al. v. MRO Corporation, 1 WAP 2012.

U.S. Supreme Court Strikes Down State Prohibition on Nursing Home Arbitration

Authors: Amy L. Miles and Marc L. Penchansky

Court invalidates West Virginia law prohibiting pre-dispute arbitration agreements in nursing home admissions contracts. This will likely impact other states who have similar prohibitions like Oklahoma.

The Supreme Court of the United States has recognized “an emphatic federal policy in favor of arbitral dispute resolution.” See KPMG LLP v. Cocchi, 132 S.Ct. 23, 25 (2011). This policy is codified in Section 2 of the Federal Arbitration Act (FAA) which makes arbitration clauses “valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

In contrast to the federal policy, West Virginia has recognized that the public policy of that state requires its Courts not to enforce in personal injury or wrongful death suits “[a]rbitration clauses in nursing home admission agreements—which were signed prior to the alleged occurrence of negligence that resulted in the person injury or wrongful death of a nursing home resident . . .” See Brown v. Genesis Healthcare Corp., 2011 WL 2611327 (W.Va. 2011). The tension between West Virginia’s policy and the FAA was apparent when three families brought suit against West Virginia nursing homes. In each instance, a family member signed an agreement with the nursing home on behalf of the resident. Each agreement included a clause to arbitrate disputes with the nursing home. The Supreme Court of West Virginia held that the public policy of West Virginia was not preempted by the FAA. According to the State Court, “Congress did not intend for the FAA to be, in any way, applicable to personal injury or wrongful death suits that only collaterally derive from a written agreement that evidence a transaction affecting interstate commerce, particularly where the agreement involves a service that is a practical necessity for members of the public. See Brown.

. . . And the Sky is Blue: Study Shows that Plaintiffs Prefer to File Civil Cases in Philadelphia

Author: Marc L. Penchansky

UPDATE: On February 15, 2012, the Court of Common Plea in Philadelphia County announced changes to the CLC. The Honorable Judge John W. Herron entered General Court Regulation No. 2012-01. The Order eliminated reverse bifurcation in mass tort and asbestos cases unless agreed upon by the parties. The order further limited consolidation in mass tort cases. Out-of-state counsel admitted pro hac vice may only try two mass tort cases a year in Philadelphia. The Court also asked out-of-state asbestos plaintiffs to seek other venues to file their claims in order to resolve a backlog of asbestos cases in Philadelphia.

Earlier this month, the International Center for Law and Economics issued an appendix to its previously published study entitled Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Analysis.” It is likely that many Philadelphia area attorneys did not need to break the spine of the study or await the publication of the appendix to answer the title’s question – yes, plaintiffs are attracted to the Philadelphia court system. Indeed, the American Tort Reform Foundation had already labeled Philadelphia with the attention-getting moniker, America’s Number One Judicial Hellhole.

The principal study found that Philadelphia courts had a larger caseload than expected. Further, the study found that Philadelphia plaintiffs overwhelmingly preferred jury trials and were less likely to settle. (p. 2). The preference for Philadelphia as venue for civil cases became particularly apparent when Pennsylvania restricted venue in medical malpractice cases. In 2003, the Supreme Court of Pennsylvania required medical malpractice lawsuits to be filed in the county where the cause of action arose. See Pa.R.C.P. 1006(a.1). The filings of medical malpractice cases in Philadelphia declined 64.9 % from 2000 through 2010. (p. 29). Other Pennsylvania counties observed only a 28.2 % decline during that same time period. (p. 29).

The study also focused on the Complex Litigation Center (CLC). The CLC was the nation’s first courthouse “designed exclusively for complex multi-filed Mass Tort cases . . .” According to the authors, the CLC actively sought to recruit the filing of lawsuits in Philadelphia. (pp. 8-9). The CLC accomplished this by offering to plaintiffs quick and rather rigid trial dates. (p. 9). Further, the CLC required only federally mandated minimum contacts to establish jurisdiction and was permissive in permitting venue. (p. 9). When these attributes are coupled with Philadelphia’s reputation as a big-verdict forum, the hope was that Philadelphia would become attractive to Plaintiffs’ attorneys and “tak[e] business away from other courts.” (pp. 8-9).

The recently released Appendix to the report collected data from mass tort cases filed in Philadelphia. The author tried to ascertain plaintiffs’ home addresses and the locations of the alleged injuries. In 1357 cases, the author learned the home address of the plaintiff and/or the injury location. In 67.2 % of those suits, no connection between Pennsylvania and the plaintiff was apparent (App. at p. 2). Only 13.3% of those cases were filed by plaintiffs who live or were allegedly injured in Philadelphia. (App. at p. 2).

When only home address is considered, 72.8 % of plaintiffs reside out-of-state while a mere 6.1 % of plaintiffs report Philadelphia home addresses. (App. at p. 2). In those cases where evidence of the site of the alleged injury was available, only 35.8% alleged injury in Philadelphia and another 33.1% alleged injury in another Pennsylvania county. When asbestos cases are removed from the calculations, the numbers are more startling. Only 16% of the injuries were located in Pennsylvania and 12% were located in Philadelphia. (app. at pp. 4 and 5).

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