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.”

McCumber Daniels’ Tampa Office Relocates to Hoover Boulevard

McCumber Daniels announced today the relocation of its Tampa office to 204 South Hoover Boulevard, Suite 130, Tampa, Florida 33609.

The new office will accommodate the company’s current staff and enable further expansion for the firm’s future growth.

We've movedMcCumber Daniels offers a wide variety of litigation services for insurers, health care facilities, businesses, financial institutions and licensed professionals. The firm regularly handles cases involving Medical Malpractice Defense, Commercial Litigation, Bankruptcy and Creditors’ Rights, Insurance Coverage, General Liability, Professional Liability Defense, Appeals, Long-Term Care Defense, and Health Care Law (including ZPIC Reviews and Audit Appeals.) With years of legal, corporate, medical, commercial, administrative and legislative experience, we are able to provide full-service representation for all of our clients in all types of disputes or litigation.

For more information visit our website at www.mccumberdaniels.com. All email inquiries can be sent to info@mccumberdaniels.com.

And the Survey Says…More Tort Reform Please

Authors: Marc Penchansky and Stephanie Hedrick

The U.S. Chamber Institute for Legal Reform (ILR) polled 1600 voters from last week’s election about their opinions on tort reform.   Nearly 9 out of 10 voters feel that the number of frivolous lawsuits is a “total serious problem.”  These lawsuits are considered to be with “little merit filed by lawyers mostly out to make money.”  The survey also revealed that 83% of the polled number believes that the next Congress should continue to pass legislation to reform the class action lawsuit system.

Prior to the election, The American Tort Reform Association along with Sick of Lawsuits, a campaign headed by Citizens against Lawsuit Abuse, released a report in August 2012, regarding public opinions about tort reform.   Of those polled, 89% felt that lawsuit abuse is a problem and 60% believe that the number of lawsuits have hurt the economy. Similar to the ILR survey, the majority of voters agree, “enacting lawsuit reform is an important part of improving the U.S. business environment and attracting and keeping jobs”

At the State Level

Although tort reform on a national level is important, 2012 was a busy year for medical malpractice tort reform in the states.  As detailed below, these states have enacted approaches, and sometimes made changes to past mandates, to assist in reducing the cost of malpractice claims.

Patient Safety and Defensive Medicine Workgroup

In February, 2012, Senate Bill 1580 was passed in Oregon establishing a Governor-appointed Patient Safety and Defense Medicine Workgroup (PSDM); a workgroup created to recommend a medical liability legislative proposal for the 2013 Legislative session.  The workgroup met three times in 2012 to discuss the Governor’s proposal for an Early Disclosure and Resolution (EDR) program, while guided by these principles listed in the Bill:

  • Improve the practice environment to allow physicians to learn from medical errors and improve patient safety;
  • More effectively compensate individuals who are injured as a result of medical errors; and,
  • Reduce the collateral costs associated with the medical liability system including costs associated with insurance administration, litigation, and defensive medicine.

The workgroup’s final recommendations and draft legislation, which will be introduced in the 2013 Legislative session, recommend working toward an Early Disclosure and Resolution (EDR) program.  This program is a first step after a serious event occurs to avoid claiming malpractice and avoiding the trial process.  This program will include a notice of a serious event, a 30-day cooling off period and finally a 90-day resolution process in which the parties must discuss and agree upon compensation, and if not, they move into the next phase of the process, mediation.  Finally, if the case is not resolved at mediation, the patient or representative may pursue legal action through the traditional litigation system, where the EDR and Mediation process will not be admissible.

Apology Legislation

This blog has been tracking the trend of state “apology legislation,” which is designed to allow medical professionals to express empathy for and take ownership of an unforeseen outcome without the risk of retaliatory litigation based solely on the statements made at the time of the apology. This year, Massachusetts joined the growing list of states that have enacted the “Apology Approach” to facilitate the early resolution of medical malpractice cases.

On August 6, 2012, Massachusetts Governor Deval Patrick signed the Healthcare Cost Control Bill, known as “Disclosure, Apology and Offer” (“DA&O”), a joint initiative by Massachusetts physicians and lawyers to utilize a more compassionate approach to handling medical errors and malpractice.  “The new model includes provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with the sharing of all pertinent medical records by the patient, full disclosure by providers, and makes inadmissible all statements of apology during litigation.”[   Finally, the organizations work with their liability insurers to give patients a fair and timely offer of financial compensation.  “By giving patients the opportunity to receive transparent information and prompt financial recourse, the hope is that the court system would be used only as a last resort.

Tort Reform in New Hampshire

In New Hampshire, Governor John Lynch vetoed “early offer” legislation.  SB 406 established a voluntary program to allow medical providers’ insurance companies to make “early offers” to injured patients who may bring a malpractice suit.  If a patient agreed to participate in the program but rejected the early offer, the patient would need to post a bond to cover the defense’s attorneys’ fees and costs.  If the jury awards the injured patient less than 125 percent of the early offer, the patient would have to pay the defense’s attorneys’ fees and costs.  Supporters argued that the bill would streamline the process and allow patients access to quicker settlements.

Medical Malpractice Caps

Tort reform legislation was established to create a sense of balance between the interest of the patients that are affected by medical negligence and the interest of the physicians who are burdened with the rising cost of insurance premiums and possible threat of a lawsuit.   Medical malpractice caps were created to sufficiently compensate patients faced with medical malpractice, without having the physicians become priced out by high insurance premiums (and aim to reduce the amount of frivolous lawsuits brought by personal injury attorneys.)

Overturning States Medical Malpractice Caps

This year, the Missouri Supreme Court, in a 4-3 decision, overturned a $350,000 cap on non-economic medical malpractice damages.  The cap was created by the Missouri General Assembly in 2005.  On July 31, 2012, in Watts v. Lester E. Cox Medical Centers, the Court ruled the cap unconstitutional because it infringed on an individual’s right to trial by jury.

Upholding States Medical Malpractice Caps

Conversely, the Kansas Supreme Court recently upheld a 25-year-old law, in the case of Miller v. Johnson.  That case involving a woman who had the wrong ovary removed by a doctor, reaffirmed the medical malpractice cap of $250,000.  The Kansas Medical Society, an association that represents most of the state’s physicians, stated, “The Court properly observed that the intent of the cap was to ensure quality health care availability in Kansas and to promote affordable, available malpractice insurance for health care providers. The court recognized these objectives as legitimate state interests that promote the general welfare.”[

Deciding Fate

This year the Florida Supreme Court heard arguments in the case of Evette McCall v. United States of America SC11-1145 addressing the malpractice law on the noneconomic medical malpractice caps of $500,000 per claimant and practitioner with an aggregate cap of $1,000,000.  These caps were set in 2003. The decision on whether or not the caps are constitutional now rests in the hands of the Florida Supreme Court.

More Tort Reform Please

The proper balance between plaintiff’s rights and an affordable health care system remains difficult to achieve.  It is clear that the populace is skeptical about the validity of many medical malpractice lawsuits brought in this county and see tort reform as a way to achieve everyone’s goal of more affordable health care.  The answers are not easy but it is clear that federal and state legislatures continue to work to find a system that is fair to all.

Improvements to the ZPIC Audit Process for Florida’s Long-Term Care Providers

Authors: Starlett M. Miller and Stephanie F. Hedrick

During these times of thinning margins, where many businesses’ daily operations may be jeopardized by a month’s delay in the receipt of reimbursement, the fierce backlash the Centers for Medicare and Medicaid Services (CMS) received from nursing home owners and operators regarding prepayment policies implemented for the Zone Protection Integrity Contractors’ (ZPIC) audits was no surprise.

CMS established the ZPIC audits program to identify cases of suspected Medicare fraud, investigate suspected fraud in a thorough and timely manner, and take immediate action to ensure that Medicare Trust Fund monies are not inappropriately paid and that any mistaken payments are recovered.  The ZPIC auditors’ focus has been on skilled nursing facilities, physicians, hospices, HME/Rehab facilities, and physical therapy providers located in the five “hot spot” zones for Medicare fraud, which includes the State of Florida.

Unfortunately, the initiation of a ZPIC audit process initially meant that the provider being audited may face significant challenges to their continued financial viability.  While some providers under investigation may experience a six month time frame for the audit, other providers have seen up to 18-24 months of prepayment reviews.  During the prepayment reviews, the providers were placed on very strict Medicare reimbursement limitations, in which a percentage of their claims undergo review before payment is authorized.

Inside Health Policy recently announced that the CMS modified these rules on August 23, 2012, which will be a significant improvement for long-term care providers.  Thanks in large part to the efforts by the American Health Care Association (AHCA) and the Florida Health Care Association (FHCA), nursing homes in Florida will no longer be subjected to prepayment reviews.   “CMS says circumstances surrounding the reviews indicated that there is still a potential problem with some nursing home documentation, but CMS can accomplish the necessary oversight without prepayment reviews.”  Helpfully, providers against whom ZPIC auditors initiated a prepayment review audit prior to August 23, 2012 who have not yet submitted their responsive documents are not required to submit the information to the ZPICs.

Stripping the prepayment component from the ZPIC auditors’ arsenal is a step in the right direction toward fairness and the restoration of due process in CMS’s ZPIC audits.  Nonetheless, ZPIC audits may still become a costly and daunting process for any healthcare provider.  Many providers will still need to utilize CMS’s appeals process to reverse or modify the decision of the ZPIC auditors.  McCumber Daniels attorneys are available to assist throughout the ZPIC audit process and provide guidance from the initial response to a ZPIC audit through the final appeals process.

Barrick and Forth Again

Update by: Marc L. Penchansky

In December 2011, we wrote about the opinion in Barrick v. Holy Spirit Hospital, where the Superior Court of Pennsylvania reversed a decision of its panel and found that communications between an expert and a party’s attorney were not discoverable absent a showing of cause by the requesting party.  At that time, we expected that the Supreme Court of Pennsylvania was likely to take up the issue.  And so they did.  On August 31, 2012, the Supreme Court granted review to consider “whether the Superior Court’s interpretation of Pa.R.C.P. No. 4003.3 improperly provides absolute work product protection to all communications between a party’s counsel and their trial expert.”

We will continue to keep you updated on the status of this all-important issue.

Making a Record for Appeal

Author: Amy L. Miles

A crucial component of obtaining a judgment in the trial court is the ability to keep favorable judgments when the opposing party seeks an appeal or to overturn unfavorable judgments when the trial court has erred.  While a case is being litigated on the trial level, the focus is most often on just getting to the judgment.  A party and its attorney should be aware, however, that if an appeal must be taken, the appellate courts can consider only the arguments and facts on record in the trial court—and nothing more.  A party cannot go back and “fill in” missing facts or arguments for the appellate court.    Therefore, it is essential to ensure that every argument and fact needed to win your case is presented to the trial court—even when those arguments and facts do not seem to be what will convince the trial court to make its ruling.

The reality is that the same fantastic facts and arguments that may sway a jury—or even a trial judge—may not necessarily be the facts and arguments that will sustain your case through an appeal.  The best way to ensure long-term success in a case is to be familiar with the case law controlling the issues that are disputed in your case.  It is in the case law that a lawyer finds specific interpretations of controlling statutes and contract terms, discussions of specific facts that persuaded the court to rule as it did, and legal reasoning that can point to what must be shown in order to prevail.  Armed with this knowledge, a trial lawyer will be equipped to ask the right questions and get the answers needed to determine the case.  The trial lawyer will also be able to make the specific arguments, based on controlling cases, which will preserve the issues if needed for appellate court consideration.

McCumber Daniels’ appellate practitioners stay abreast of the case law as it is released from the appellate courts.  They are already familiar with controlling case law in many areas, so they are in a position to assist in ensuring that the facts necessary to prove the case and the arguments required to win are being discovered and presented at the trial level.  When novel issues arise, the appellate lawyers have the research experience and skills to quickly and efficiently determine what facts and arguments must be presented to prevail on those issues—or to propose new arguments, if necessary, that are well-grounded in established case law.

This preliminary footwork during the pre-trial and trial stages of a case ensures that the facts and arguments developed are solid and preserved.  It gives you a sound basis on which to make decisions about resolving the case and gives the trial court a solid foundation for its ruling.  Then, if it comes to an appeal, the research is largely done and the facts are well-established, reducing the usual delay and costs that accompany appellate review.  Further, the appellate court has everything in the record it needs to conduct a complete review of the case.  You can depend on our appellate department not only to handle appeals when they arise, but also to assist you and your trial counsel as you progress through the litigation process to accomplish the best results possible in the most efficient and cost-effective manner.

Legal Update: Pennsylvania Dentists are now Required to carry Professional Liability Insurance

As of today, August 21, 2012, all Pennsylvania dentists are now required to carry medical malpractice insurance.  On June 22, Pennsylvania Governor Tom Corbett signed in Senate Bill 388 mandating that dentists purchase professional liability insurance policies of at least $1 million per claim.

Pennsylvania is now the 10th state, including Florida, which requires dentists to carry malpractice insurance.  According to the National Practitioner Annual Report 2010, Pennsylvania had 2,777 reports of dental malpractice and ranked third nationally falling behind only California and New York for the time period of September 1, 1990 through December 31, 2010.

Dr. Bernard Dishler, President Elect of the 5,500 member Pennsylvania Dental Association, said his organization supports the legislation.   “The PDA believes it in incumbent on the dental profession to align with other health care professionals who practice under similar requirements and we support SB 388 as written,” Dishler said.

The bill was unanimously passed by State House, Senate and the Governor.  The goal of the bill is to provide dentists protection from major financial losses in the case of medical error.

Author: Stephanie Hedrick, Client Relations

A Picture is Worth a 1,000 Words

Author: Fred J. Hughes

A recent study published by the Journal of the American Academy of Pediatrics shows that including a patient’s photo on an order verification screen within the Electronic Medical Record (EMR) can significantly reduce the number of orders entered into the wrong patient’s records.

The Children’s Hospital in Colorado conducted a hospital-wide quality improvement program to improve patient identification and verification practices.  In 2009, the placement of orders on the wrong patient’s chart was the second most common reason that care was provided to the wrong patient, and accounted for 24% of reported errors.  Due to these findings, the hospital upgraded their EMR systems to include a computerized order entry verification process which included a centrally placed photo of each patient.  In 2010, the number of errors was dramatically reduced (12 reported cases) and in 2011, only three cases were reported, all of which did not have a photo included in the EMR.

It goes without saying that reducing errors should lead to a reduction in medical-legal actions.  Given the mandate that the health care industry must begin to utilize electronic medical records, all health care facilities are going to face a variety of challenges in implementing and operating such a system.  One major challenge involves treatment errors related to medication orders being placed in the wrong patient’s record and then being carried out for the incorrect patient.  The Children’s Hospital Colorado study shows us that the simple use of a photograph within the record can reduce those errors, improve patient safety, and support better patient outcomes.  This will in turn improve the facility’s community relations and help to avoid the costs, both physical and economic, associated with litigation.  This picture just may be worth much more than 1,000 words.

 

Disclosure, Apology and Offer

Authors: Starlett M. Miller and Stephanie F. Hedrick

“I’m sorry” – One of the most powerful phrases a person can say.  However, when it comes to medical errors, doctors have been reluctant to admit to mistakes when they inevitably happen due to the potential for a patient or their family bringing a legal action.  Many states are now passing laws commonly referred to as “apology legislation” which is designed to allow medical professionals to express empathy for and take ownership of an unforeseen outcome without the risk of retaliatory litigation based solely on the statements made at the time of the apology.

Recently, Massachusetts joined the growing list of states that have enacted the “Apology Approach” to facilitate the early resolution of medical malpractice cases.  On August 6, 2012, Massachusetts Governor Deval Patrick signed the healthcare cost control bill, known as “Disclosure, Apology and Offer” (“DA&O”), a joint initiative by Massachusetts physicians and lawyers to utilize a more remorseful approach to handling medical errors and malpractice.  “The new initiative is a fundamental shift from the culture of blame and denial that plagues the medical liability system,” said Alan Woodward, MD, chair of the Massachusetts Medical Society’s (“MMS”) Committee on Professional Liability and a past MMS president.  Woodward stated, “It will encourage transparency and honesty, protect the rights of patients who have been harmed by avoidable events, improve patient safety, reduce litigation, and ultimately cut health care costs.”   The new model includes provisions for a six-month, pre-litigation resolution period that affords the time to go through a DA&O process with the sharing of all pertinent medical records by the patient, full disclosure by providers, and makes inadmissible all statements of apology in litigation.   Finally, the organizations work with their liability insurers to give patients a fair and timely offer of financial compensation.  By giving patients the opportunity to receive transparent information and prompt financial recourse, the hope is that the court system would be used only as a last resort.

The enactment of state laws protecting healthcare providers’ apologies in the event of a medical error not only lend more credibility to the profession, but have also shown to provide “the greatest reduction in average payment size and settlement time in cases involving more severe patient outcomes.”   More states may follow the example set by Massachusetts and enact laws that preclude the admissibility of apologies by providers in medical malpractice actions in order to reduce the costs associated with medical malpractice because apologies are a “mitigating factor in whether patients decide to litigate” and allowing these statements without fear of repercussions, “expedites the settlement process.”

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