Sunday, July 5, 2009

Fraud, false claims act, arbitration, nursing homes, medical negligence and tossed oriental vegetables with garlic croutons

OBAMA ADMINISTRATION LAUNCHES 'COMMUNITY LIVING' INITIATIVES, 12 No. 1 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter July 2, 2009
The Obama administration has proclaimed this the "year of community living" by launching initiatives to help disabled Americans find home- and community- based alternatives to institutionalization in nursing homes. The announcement came on the 10th anniversary of the U.S. Supreme Court's landmark decision in Olmstead v. L.C., 527 U.S. 581 (1999), which held that the unnecessary institutional segregation of disabled people constitutes discrimination under the Americans with Disabilities Act

UNSEALED SUIT TOSSED IN FALSE CLAIMS ACT CASE, United States v. LHC Group, 12 No. 1 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter July 2, 2009 A federal judge in Tennessee has dismissed with prejudice a whistle-blower suit against a home health care business because the plaintiff's attorney failed to file the complaint under seal as required by the False Claims Act. U.S. District Judge Thomas A. Wiseman Jr. said his decision to toss the case was supported by the plain language of the FCA, 31 U.S.C. 3729, and by case law, including United States ex rel. Erickson v. American Institute of Biological Sciences, 716 F. Supp. 908, 910

UNAVAILABLE FORUM VOIDS ARBITRATION PACT, Grant v. Magnolia Manor-Greenwood, 12 No. 1 Andrews Nursing Home Litig. Rep. 6, Andrews Nursing Home Litigation Reporter July 2, 2009 An arbitration agreement between a nursing home and a resident is not enforceable because the organization designated to handle the proceedings no longer accepts such cases, the South Carolina Supreme Court has ruled. The high court unanimously ruled that the American Health Lawyers Association as the arbitration forum was an "integral part" of the agreement.The ruling means James O. Grant may continue to litigate his wrongful-death lawsuit

NURSING HOME MORTGAGOR CHEATED HUD ON LOANS; SUIT SEEKS $77 MILLION, United States v. Capmark Fin., 12 No. 1 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter July 2, 2009 A mortgage banking company allegedly lied to the U.S. Department of Housing and Urban Development on loan insurance applications for two nursing home customers, causing the government to lose nearly $26 million when the homes defaulted. The government is seeking $77 million in treble damages from Capmark Finance Inc. under the False Claims Act, 31 U.S.C. 3729. The company was one of the nation's largest originators of HUD-insured loans, according to the complaint.

PARENTS WIN FIRST VERDICT AGAINST DUPONT IN PEDIATRIC HEART SURGERY CASES, Svindland v. Nemours Found., 5 No. 3 West's Medical Malpractice Law Report 1, West's Medical Malpractice Law Report July 2, 2009 A federal jury in Philadelphia has returned a $650,000 verdict for parents who say a cardiac surgeon at A.I. duPont Hospital for Children committed malpractice when he performed experimental surgery on their infant son, causing his death. The verdict was the first in favor of any plaintiffs in some 20 cases filed against the Delaware hospital and former chief cardiac surgeon William I. Norwood since 2004. Ten of the cases remain pending.

VERMONT TIGHTENS RULES ON GIFTS FROM DEVICE, DRUG COMPANIES, 5 No. 3 West's Medical Malpractice Law Report 3, West's Medical Malpractice Law Report July 2, 2009
Vermont Gov. Jim Douglas has signed into law a bill that will tighten state regulations involving gifts to health care providers by makers of "prescribed products" like drugs and medical devices. The state Legislature approved the measure, S. 48, with strong bipartisan support, by a 99-40 House vote and a 137-4 tally in the Senate. It took effect July 1. The new law removes loopholes in the state's current physician gift reporting system.

MOM ADDS ER NURSE, ILLINOIS HOSPITAL TO CIVIL RIGHTS SUIT, Lopez v. Village of Carpentersville, 5 No. 3 West's Medical Malpractice Law Report 4, West's Medical Malpractice Law Report July 2, 2009
An Illinois hospital and a registered nurse have been added as defendants in a federal lawsuit alleging paramedics refused to take a baby to the emergency room because he is Hispanic. The delay in care left the boy with permanent brain damage, plaintiff Gloria Lopez says. Lopez amended her complaint in the U.S. District Court for the Northern District of Illinois to name Sherman Hospital and ER nurse Jenny Lentz.

NURSES CAN GIVE EXPERT MEDICAL OPINIONS, PA. HIGH COURT SAYS, Freed v. Geisinger Med. Ctr., 5 No. 3 West's Medical Malpractice Law Report 5, West's Medical Malpractice Law Report July 2, 2009
Noting it is "loath to reverse our own prior decisions," the Pennsylvania Supreme Court has done just that after finding an earlier ruling that precluded nurses from offering medical opinions when testifying as experts conflicted with the state's "liberal standards" for expert testimony. The June 15 decision means that a paralyzed man can have his day in court in a lawsuit alleging inadequate nursing care led to his bedsores.

COURT UPHOLDS JUDGMENT ON 'REASONABLE' MEDICAL CHARGES, Strawn v. Farmers Ins. Co., 5 No. 3 West's Medical Malpractice Law Report 7, West's Medical Malpractice Law Report July 2, 2009
An Oregon appeals court has upheld a multimillion-dollar jury award in a class action over personal injury protection payouts, finding that the insurance companies' method of determining "reasonable" medical charges breached the policies. According to the opinion, Mark Strawn filed the underlying class-action lawsuit against Farmers Insurance Co. of Oregon, Mid-Century Insurance Co. and Truck Insurance Exchange.Strawn alleged the insurers used cost-containment software to determine "reasonable" medical charges.

Fees incurred in non-binding arbitration -- Party is not required to plead entitlement to attorney's fees incurred during court-ordered, nonbinding arbitration conducted pursuant to section 44.103 because it is only after case has been terminated that a party can determine whether fee-shifting provision of statute has become effective and, if so, file an appropriate motion seeking entitlement to fees -- Even if law had required defendants to plead claim for attorney's fees pursuant to section 44.103, plaintiff waived that argument by not objecting, either before or after entry of final judgment, although defendants sent plaintiff a proposed final judgment stating that trial court would reserve jurisdiction to consider defendants' motion to tax fees and costs pursuant to section 44.103, filed a motion for entitlement to attorney's fees based upon plaintiff's rejection of arbitrator's decision, and sent plaintiff a proposed order granting the motion
Reported at 34 Fla. L. Weekly D1344a

Hospital consent form indicating that surgeons were independent contractors did not, standing alone, conclusively refute apparent agency relationship between hospital and surgeons -- Further, trial court erred in failing to require hospital to properly lay predicate for business records exception to hearsay before admitting consent form into evidence -- Remand to provide hospital with opportunity to attach affidavit laying proper predicate for business records exception -- Parties may submit additional record evidence in support of or in opposition to summary judgment under apparent agency theory, and thereafter, trial court may reevaluate whether genuine issues of material fact exist on this issue
Reported at 34 Fla. L. Weekly D1349a

ACE, AIG FACE SUIT FOR REFUSING TO COVER FULL SETTLEMENT COSTS, Experian Info. Solutions v. Ill. Union Ins. Co., 19 No. 39 Andrews Ins. Coverage Litig. Rep. 6, Andrews Insurance Coverage Litigation Reporter July 2, 2009 A credit reporting agency has sued its insurers for refusing to cover costs and attorney fees incurred in connection with the settlement of two class- action lawsuits against it. Experian Information Solutions, which specializes in consumer and business credit reporting and marketing services, says ACE and American International Group are in breach of contract by refusing to pay for any settlement that includes an attorney fee award and related costs.

Subprime: AIG CAN'T MAKE CO-CONSPIRATORS HELP PAY FOR FRAUD, AIG Consol. Derivative Litig., 19 No. 39 Andrews Ins. Coverage Litig. Rep. 8, Andrews Insurance Coverage Litigation Reporter July 2, 2009
Troubled insurance titan AIG cannot sue brokers and reinsurers that allegedly helped it defraud investors of $5 billion with bid-rigging, phantom deals and fake reinsurance schemes, a Delaware state court judge has ruled. Vice Chancellor Leo Strine said the in pari delicto doctrine bars AIG and its former officers and directors from trying to force insurance broker Marsh & McLennan Cos. and other alleged co-conspirators to help pay for any future judgment or settlement that shareholder plaintiffs.

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