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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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