Fresh green mix of healthy law

Approved by the Governor June 16, 2009.
2009 Fla. Sess. Law Serv. Ch. 2009-193 (C.S.C.S.S.B. 2658) (WEST)
PUBLIC HEALTH--STATE FUNDED PROGRAMS--FRAUD
Approved by the Governor June 16, 2009.
An act relating to fraud and abuse in state-funded programs; designating Miami-Dade County as a health care fraud area of special concern for certain purposes; amending s. 68.086, F.S.; authorizing rather than requiring a court to award attorney's fees and expenses to a prevailing defendant in an action brought under the Florida False Claims Act under certain circumstances; providing applicability; creating s. 408.8065, F.S.; providing additional licensure requirements for home health agencies, home medical equipment providers, and health care clinics; requiring the posting of a surety bond in a specified minimum amount under certain circumstances; imposing criminal penalties against a person who knowingly submits misleading information to the Agency for Health Care Administration in connection with applications for certain licenses; amending s. 400.471, F.S.; providing limitations on the licensure of home health agencies in certain counties. . .

Health Insurance: GA. UROLOGY CENTER SAYS INSURER UNDERPAYS OUT-OF-NETWORK CLAIMS, Urology Ctr. of Ga. v. Blue Cross Blue Shield, 19 No. 38 Andrews Ins. Coverage Litig. Rep. 7, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A urology center in Georgia has filed a class-action lawsuit accusing Blue Cross Blue Shield of discouraging visits to out-of-network providers by reimbursing for these procedures at a "tiny fraction" of usual and customary charges. The suit alleges Blue Cross Blue Shield of Georgia is violating the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, by trying to prevent patients from exercising their right to visit out-of-network providers.

Health Insurance: BLUE SHIELD DENIES COVERAGE FOR MENTALLY ILL KIDS, SUIT SAYS, Daniel F. v. Blue Shield of Cal., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 8, Andrews Insurance Coverage Litigation Reporter June 26, 2009
Blue Shield of California is facing a class-action lawsuit alleging it denies state-mandated coverage for seriously emotionally disturbed children and adolescents. The lead plaintiff, identified only as Daniel F. in the complaint, says the insurance company denied coverage for his adopted son's residential psychotherapy at the Island View Residential Treatment Center for Adolescents in Utah.

Medical Malpractice (Scientific Research): JUDGE EXCLUDES EXPERT ON MORTALITY RATES IN DUPONT HOSPITAL CASES, Svindland v. Nemours Found., 6 No. 7 Andrews Expert & Sci. Evidence Litig. Rep. 7, Andrews Expert and Scientific Evidence Litigation Reporter June 25, 2009
The judge presiding over two of the remaining eight lawsuits against the A.I. DuPont Hospital for Children and former chief cardiac surgeon William I. Norwood has excluded a plaintiff's expert who would have compared the death and complication rates of Norwood's surgeries to those of other pediatric heart surgeons. U.S. District Judge Mary A. McLaughlin also excluded all data from the Delaware Health Statistics Center and two nationally known children's hospitals.

Product Liability (Causation): PAIN-PUMP MAKER SEEKS JUDGMENT IN FLA. SUIT, Kilpatrick v. Breg Inc., 6 No. 7 Andrews Expert & Sci. Evidence Litig. Rep. 10, Andrews Expert and Scientific Evidence Litigation Reporter June 25, 2009
Medical device maker Breg Inc. has moved for summary judgment in a Florida man's liability suit over harm allegedly caused by its Pain Care 3000 pain pump, saying the plaintiff lacks the needed causal evidence. With a trial slated for July 6 in the U.S. District Court for the Southern District of Florida, Breg argues that Douglas Kilpatrick's suit must be dismissed because the evidence he has offered fails to show both general and specific causation as required by state law.

Bad Faith: INSURER'S BAD FAITH DID NOT HARM INSURED, WASH. COURT SAYS, Ledcor Indus. v. Mut. of Enumclaw Ins. Co., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 9, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A state appeals panel in Seattle has upheld a trial court's refusal to award damages for an insurer's bad faith in failing to promptly accept a general contractor's tender of defense as an additional insured on a subcontractor's policy. The general contractor was not entitled to bad-faith damages because it ultimately received what it was due under the contract and suffered no harm from the insurer's bad faith, Washington's Division 1 Court of Appeals said.

Disability: EMPLOYER'S FAILURE TO FOLLOW PLAN MEANS $213K REINSTATEMENT AWARD, Pannebecker v. Liberty Life Assurance Co., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 4, Andrews Insurance Coverage Litigation Reporter June 26, 2009
An Arizona woman deserves reinstatement of her $213,000 benefits award because her insurer failed to properly apply the terms of a long-term- disability plan when deciding to cut off her monthly payments, according to a federal judge. U.S. District Judge James Teilborg of the District of Arizona said he agreed that Nancy Pannebecker was no longer totally "disabled" under the terms of the plan but that the insurer was required to specify the sedentary positions Pannebecker could perform.

Disability: INSURER FAILED TO REVIEW DISABLED WOMAN'S DENIAL OF BENEFITS, Roach v. Kaiser Permanente Long Term Disability Plan, 19 No. 38 Andrews Ins. Coverage Litig. Rep. 5, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A California insurer improperly ruled that a plan member was not eligible for long-term disability benefits as it failed to comply with the terms of the plan, which required it to review her appeal, a Los Angeles federal judge has ruled. Plaintiff Patricia Roach went out on disability in September 2004 from her job as a project manager/ambulatory care registered nurse manager after developing chest pains, back spasms, uncontrolled high blood pressure and other physical symptoms.

Failure to Settle: GEORGIA CLARIFIES 'BAD-FAITH FAILURE TO SETTLE' CIRCUMSTANCES, Trinity Outdoor v. Cent. Mut. Ins. Co., 19 No. 38 Andrews Ins. Coverage Litig. Rep. 6, Andrews Insurance Coverage Litigation Reporter June 26, 2009
A policyholder cannot sue an insurer for bad-faith failure to settle a lawsuit unless the insurer's decision not to settle results in a judgment or settlement in excess of the policy limits, the Georgia Supreme Court has ruled. The U.S. District Court for the Northern District of Georgia certified the question to the state high court along with a follow-up question: If a judgment in excess of the policy limits is not required, what must a plaintiff show to prove negligent or bad-faith failure to settle.


Administrative law -- Birth-Related Neurological Injury Compensation Association -- Settlement -- Clarification -- Division of Administrative Hearings did not have jurisdiction to enter orders purportedly clarifying 1995 and 1999 final orders which approved stipulations settling parents' claims for NICA benefits -- Moreover, appealed orders did not appear to clarify anything about 1995 and 1999 final orders -- Attorney's fees -- Remand for reconsideration of order denying parents' motions for fees and costs -- Expenses incurred by parents in defending against NICA's untimely efforts to seek clarification of 1995 and 1999 final orders were incurred in connection with the filing of their claims for benefits and, accordingly, on remand administrative law judge should award parents their reasonable expenses incurred in this matter pursuant to section 766.31(1)(c) -- Where ALJ struck parents' section 57.105 motions for attorney's fees on basis that they were prematurely filed, and parents claim that they did not file motions with Division of Administrative Hearings, that they have in their possession the original motions, that they provided copies of the motions to NICA and others, and that it appears that someone else filed copies of the motions with DOAH, on remand, to extent parents continue to seek fees and costs under section 57.105, evidentiary hearing may be required to determine whether parents complied with procedural requirements of statute -- In light of appellate court's reversal of clarification orders, whether parents are entitled to fees and costs under section 120.569(2)(e) to be reconsidered on remand, should parents still seek fees and costs under that statute, where motions were denied on basis that ALJ had granted NICA's motions for clarification
Reported at 34 Fla. L. Weekly D1275a

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Chocolate Chip Cookies: Plaintiffs Bake Up Batch of Food Safety Suits Against Nestle

Posted Jun 26, 2009, 12:53 pm CDT
By Molly McDonough
Lawsuits on behalf of children and young adults who reportedly became ill after handling Nestle Toll House cookie dough have been filed against the company in several states, including Georgia, Colorado, California and Washington. Read more.

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Free Gitmo Detainee, Judge Orders, Says US Position ‘Defies Common Sense’

Posted Jun 22, 2009, 07:26 pm CDT
By Martha Neil

Finding that a captured videotape of Abd Al Rahim Abdul Rassak shows him being tortured by al-Qaida as a suspected American spy, a federal judge has rejected as ridiculous a U.S. government position that he continues to be a legitimate detainee in a terrorism case.

In a 13-page habeas corpus opinion today, U.S. District Judge Richard Leon of the District of Columbia says the government is "taking a position that defies common sense" and orders Rassak freed from the military detention facility at Guantanamo Bay in Cuba. The judge also resorts to unusual punctuation ("I disagree!") to make his point, according to the Politics blog of FOX News. Rassak now uses the last name Janko, the news agency notes. . . .more

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Bradley Arant Reportedly Scammed Out of More Than $400K

Bradley Arant Boult Cummings fell victim to a sophisticated debt collection scam, to the tune of more than $400,000. But its quick reporting of the crime has led to the arrest of suspects.

The Nashville Post (sub. req.) reported yesterday that the law firm wired more than $400,000 to the foreign bank account of a scammer posing as a client. Lawyers at the firm believed the funds were covered by a check it had deposited—a check that turned out to be phony.

The law firm says it quickly reported the scam to the FBI, leading to the arrest of suspects and the freezing of the funds. "It was an elaborate criminal plan on many levels," Bradley Arant managing partner John Grenier said in a statement released to the ABA Journal. The firm quickly reported the crime, leading to "the apprehension of the suspects in this scheme and the freezing of the funds."

The Tennessee Bar Association sent a blast e-mail Wednesday warning about the scam.

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Judge Allows Civil Lawsuit Over Claims of Torture

NY Times June 13, 2009 By JOHN SCHWARTZ
Published: June 13, 2009

The decision issued late Friday by a judge in San Francisco allowing a civil lawsuit to go forward against a former Bush administration official, John C. Yoo, might seem like little more than the removal of a procedural roadblock. But lawyers for the man suing Mr. Yoo, Jose Padilla, say it provides substantive interpretation of constitutional issues for all detainees and could have a broad impact.

Mr. Padilla, a Brooklyn-born convert to Islam, was arrested in June 2002 and initially charged with taking part in a plot by Al Qaeda to detonate a radioactive “dirty bomb” in the United States. After his time in the brig, the government tried him in Miami, and in 2007, he and two co-defendants were found guilty of conspiracy to murder, kidnap and maim people in a foreign country. Mr. Padilla was sentenced to more than 17 years in prison.

Judge White, who was appointed by President George W. Bush, rejected all but one of Mr. Yoo’s immunity claims and found that Mr. Padilla “has alleged sufficient facts to satisfy the requirement that Yoo set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”
Click here to read more.


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Forget Collegiality. Some of the Best Justices Were ‘Downright Mean’

Excerpt from the Post by Debra Cassens Weiss

Friends and colleagues have disputed press accounts that Judge Sonia Sotomayor can be sharp-tongued on the bench. Now a Harvard law professor is mounting a different defense in an op-ed that argues: So what if she is?

“The roots of greatness may be found in difficult personalities,” Harvard law’s Noah Feldman writes for the New York Times. “Measured by their lasting impact on Constitution and country, many of the greatest justices have been irascible, socially distant, personally isolated, arrogant or even downright mean.” . . .

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President Signed H.R. 1626 (Time-Computation Legislation) Into Law: New Egg Timers

On May 7, 2009, the President signed H.R. 1626, which amends 28 statutory deadlines making them consistent with time-computation amendments to the Federal Rules of Appellate Procedure, Federal Rules of Bankruptcy Procedure, Federal Rules of Civil Procedure, and Federal Rules of Criminal Procedure approved by the Supreme Court on March 26, 2009. The House had approved H.R. 1626 on April 22, 2009. The Senate had approved H.R. 1626 on April 27, 2009. The effective date of the legislation is December 1, 2009, consistent with the expected effective date of the federal rules amendments.


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Lake Okeechobee, "unitary waters theory", and how the hip bone is connected to the ankle bone

This is a decision issued yesterday, June 5, 2009, that affects all in Florida and it's very important to know about it. In an extremely well written and well reasoned opinion, the Eleventh Circuit Court of Appeals has issued an opinion with devastating impact on the Florida's Lake Okeechobee and the Florida Everglades. In South Florida Water Management District v. Friends of the Everglades, Slip Op. No. 07-13829 (11th Cir. June 4, 2009), the appeal turned on whether the transfer of a pollutant from one navigable body of water (the extremely polluted canals, from industrial runoff, connected to Lake Okeechobee) to another (Lake Okeechobee) is a “discharge of a pollutant” within the meaning of the Clean Water Act, 33 U.S.C. § 1362(12). The Eleventh Circuit concluded that it was not a "discharge of a pollutant" under the Clean Water Act, because the pollutant was already in a connected body of water and, therefore, a National Pollution Discharge Elimination System permit was not required. 33 U.S.C. §§ 1311(a); 1342(a). The Eleventh Circuit looked to the Act's definition of “discharge of a pollutant,” concluded the meaning of that definition is itself was disputed and that, during the course of this litigation, the Environmental Protection Agency (then under the Bush administration) adopted a regulation addressing this specific matter. That regulation adopted a "unitary waters theory" that all waters are, in essence, connected and, therefore, the movement of a polluted water from one river or canal to a another river or, in this case, to a lake, was not a "discharge of pollutant" because they were connected and therefore "unitary." Until the EPA had adopted that regulation in 2008, virtually ever appellate court in the country had rejected that theory. Disposing of a preliminary Eleventh Amendment question, the Eleventh Circuit decided that we owe that EPA regulation deference under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). The upshot of this decision is that, because of Chevron, wherein the Supreme Court decided we owe agency's deference on their interpretations of laws they are charged with enforcing, the EPA regulation will probably be given great deference and what is irrefutably the discharge of pollutants will continue until the regulation is rescinded or Congress overrides the regulation. In fact, the Eleventh Circuit says as much in the last paragraph of their opinion, almost inviting the EPA and Congress to do something about this horribly unscientific regulation.

To read the opinion, go to http://www.ca11.uscourts.gov/opinions/ops/200713829.pdf

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Ineffective assistance of counsel in immigration, the doors open

Attorney General Eric Holder today reversed former Attorney General Mukasey's order that there was no right to counsel in immigration proceedings. He instructed the U.S. Department of Justice to begin drafting a new right-to-counsel rule.

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Pay raises for appellate judges and just desserts

New York appeals court ordered NY state legislators to increase the pay of judges by some 30 percent consistent with the increased cost of living, as they'd received no pay raise since 1998. Wonder if we can do that in Florida. . . .

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