Surprise Bills for Many Under Health Law Out-of-network charges often aren’t flagged before treatment, consumers say; states tightening laws

Stephanie Armour of the Wall Street Journal reports June 11, 2015
"Many consumers with health coverage through the Affordable Care Act are facing unexpected medical bills that in some cases greatly exceed the law’s caps on out-of-pocket expenses.
The law’s limits don’t apply to charges from out-of-network providers, and many insurance plans sold on ACA exchanges have limited networks—amplifying the risk of surprise bills...
When Arturo Paramo, a 50-year-old construction worker, experienced chest pains last year, he was admitted to St. Francis Hospital in Bartlett, Tenn., after a doctor sent him there following an electrocardiogram. His wife, Bainey, said they weren’t told the hospital in suburban Memphis didn’t accept her family plan. They got a $22,945 bill—above the ACA’s $12,700 cap for a family plan in 2014—in the mail....The couple appealed the charge, which the hospital reduced to $600—but only after the bill had been sent to a collections agency, which Ms. Paramo worries will hurt the family’s credit rating....
More states are passing laws that aim to halt unexpected out-of-network bills. Under California legislation approved this month, consumers who go to an in-network facility but are treated by an out-of-network provider there only have to pay what they would have been charged if the provider participated in their plan.
A New York law providing a number of out-of-network safeguards went into effect in April, and legislation has been introduced in Texas....More than half of Americans say making sure health plans have sufficient networks to provide a wide choice of doctors and hospitals should be a top health-care priority for the president and Congress, according to an April poll by the foundation....Anthem Blue Cross of California, Cigna Corp. and Blue Shield of California are facing lawsuits filed in 2014 by beneficiaries who say they were misled about the size of the networks when obtaining coverage on the state’s ACA exchange. The insurers either declined to comment or didn’t respond to an email seeking comment...." More.


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Insurance, restraint of trade, restraint of reproductive rights and fresh rosemary bread with mango chive and cucumber chutney

Insurance -- Condominiums -- Assignment of claims -- Neither Declaration of Condominium nor Articles of Incorporation prohibited Association from assigning potential insurance claims for hurricane damage to former unit owners -- Trial court erred in dismissing former unit owners' claims against insurer -- Trial court did not abuse discretion in certifying unit owners as a class
RAMON CASTELLANOS, ET AL., Appellants, vs. CITIZENS PROPERTY INSURANCE CORPORATION, ET AL., Appellees. 3rd District.

Workers' compensation -- Compensable accidents -- Fall on employer's premises -- Where it was undisputed that claimant was actively engaged in work-related activity at time of accident, and there were no competing causes of accidental injury, claimant's work activity was de facto the major cause -- Judge of compensation claims erred in finding that claimant failed to establish that work performed within her employment caused her injury
VALERIE WALKER, Appellant, v. BROADVIEW ASSISTED LIVING and CHARTIS CLAIMS, INC., Appellees. 1st District.

Criminal Acts: SANDUSKY'S HOMEOWNERS POLICY DOESN'T COVER SEX-ABUSE DEFENSE COSTS, INSURER SAYS, State Farm v. Sandusky, 22 No. 43 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage August 3, 2012 State Farm has asked a federal court to rule that it has no obligation under Jerry Sandusky's homeowners policy to cover defense costs in criminal and civil sex abuse suits against the former Penn State assistant football coach. State Farm has provided homeowners coverage to Sandusky and his wife since 1985, the insurer says in a complaint filed in the U.S. District Court for the Middle District of Pennsylvania. The policy, renewed annually, mainly covered the couple's property

Expert Testimony: EXPERT TESTIMONY ISN'T NEEDED TO SHOW BAD FAITH, 11TH CIRCUIT SAYS, Tardiff v. Geico Indem. Co., 8 No. 7 Westlaw Journal Insurance Bad Faith 2, Westlaw Journal Insurance Bad Faith August 7, 2012 The 11th U.S. Circuit Court of Appeals has upheld the exclusion of an insurance consultant's expert testimony from a suit against Geico Indemnity Co., finding that Florida juries do not need experts to determine if an insurance company has acted in bad faith. The three-judge panel said a layperson could "decide whether Geico acted in bad faith without the assistance of expert testimony" in a case in which Geico failed to settle a claim and exposed its clients to a $1.1 million judgment.

  Restraint of Trade: AETNA SUED FOR RESTRAINT OF TRADE, Kerner v. Aetna Health Plans of Cal., 8 No. 7 Westlaw Journal Insurance Bad Faith 11, Westlaw Journal Insurance Bad Faith August 7, 2012 A California plastic surgeon has filed a class-action lawsuit alleging health insurance giant Aetna bars doctors from participating in its plans if they refer patients to out-of-network providers. Marc M. Kerner, who practices in Northridge, filed the suit in the Los Angeles County Superior Court against Aetna Health Plans of California Inc., Aetna U.S. Healthcare Inc. and their related companies. The complaint alleges unfair competition in violation of Cal. Bus. & Prof. Code 17200

Contraception: MISSOURI GOVERNOR VETOES BILL BANNING MANDATORY BIRTH CONTROL COVERAGE, 22 No. 43 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage August 3, 2012 Missouri's Democratic Gov. Jay Nixon vetoed legislation July 12 that would have expanded moral and religious exemptions from insurance policies covering birth control. Drafted by Republican lawmakers, the bill stated that Missouri employers and insurers should not be compelled to provide coverage for abortion, contraception or sterilization if such medical procedures run contrary to their "religious beliefs or moral convictions." SB 749

Health Care Reform (Contraception): FEDERAL JUDGE TOSSES STATES' CHALLENGE TO OBAMA CONTRACEPTION RULE, State v. U.S. Dep't of Health & Human Servs., 22 No. 43 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage August 3, 2012 A federal judge has dismissed a lawsuit by seven attorneys general who sought to block a rule from the Obama administration's new health care reform law that requires employers to provide contraception coverage for workers. Nebraska Attorney General Jon Bruning sued on behalf of six other states, three Catholic nonprofit institutions and two Catholic individuals, alleging the rule violates the rights of employers and religious organizations that oppose the use of contraceptives

Reproductive Rights: PLANNED PARENTHOOD SUES ARIZONA OVER MEDICAID DEFUNDING LAW, Planned Parenthood Ariz. v. Betlach, 22 No. 43 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage August 3, 2012 Planned Parenthood and three of its patients have sued the state of Arizona in a bid to overturn a law that bans family planning organizations that perform abortions from participating in Arizona's Medicaid program and from receiving public funds. The law, signed by Republican Gov. Jan Brewer in May, applies to any health care provider that is eligible for federal funding under a Medicaid regulation, 42 U.S.C. 1396d(1)(2)(B). Scheduled to take effect Aug. 2, HB 2800 excludes cases

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Insurance and torts, tobacco, procedural due process over angel hair pasta, tossed with fresh basil and roasted garlic

Insurance -- Commercial -- Breach of contract -- Bad faith -- Appeal of non-final order denying insurer's motion to dismiss breach of contract and bad faith claim, leaving claims to be tried simultaneously -- Trial court's order is reversed because insurer should not be required to defend against bad faith claim until insured has prevailed on merits -- Trial court can decide either to dismiss bad faith claim without prejudice or abate the claim until underlying breach of contract issue is resolved

LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. STUDIO IMPORTS, LTD., INC., Appellee. 4th District.

Insurance -- Commercial general liability -- Duty to defend -- Error to enter summary judgment based on finding that insurer had no duty to defend insured in personal injury action that fell within automobile exclusion of commercial general liability policy where complaint alleged facts that fairly brought suit outside automobile exclusion

CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 1st District.

Medical -- Appeals -- Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment -- Question certified -- To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict -- Court recedes from line of cases which applied a strict, outcome-determinative “but-for” test for harmless error -- Wrongful death -- Action alleging anesthesiologist and hospital were negligent in administering anesthesia, in monitoring decedent's system during cesarean delivery and controlling her fluids during surgery, and in responding to decedent's cardiopulmonary arrests -- Cross-examination -- Limitation -- Trial court abused its discretion in precluding plaintiff from cross-examining defense expert, who maintained that death resulted from amniotic fluid embolus and testified regarding range of probability of AFE occurring, regarding credibility of another witness, whose testimony seemingly indicated a disproportionately high diagnosis of AFE cases at defendant hospital -- Error was harmless where it is more likely than not that the restriction on the cross-examination did not contribute to the verdict

FRANK SPECIAL, as Personal Representative of the Estate of Susan Special, Appellant, v. IVO BAUX, M.D., IVO BAUX, M.D., P.A. PINNACLE ANESTHESIA, P.L.; and WEST BOCA MEDICAL CENTER, INC., Appellees. 4th District.

Torts -- Trusts -- Breach of fiduciary duty -- Amended final judgment awarding plaintiff an equitable lien on certain real property on plaintiff's breach of fiduciary duty claim against defendant individually and as trustee of revocable living trust was apparently based on erroneous impression that trial court could not transfer title of property to plaintiff -- Remand for reconsideration of appropriate remedy

REBEKAH PARIZ, Appellant/Cross-Appellee, vs. HELEN M. COLON, INDIVIDUALLY, AND AS TRUSTEE OF THE HELEN M. COLON REVOCABLE LIVING TRUST AND HELEN M. COLON REVOCABLE LIVING TRUST, Appellee/Cross-Appellant. 3rd District.

Torts -- Product liability -- Tobacco -- Individual action by Engle class member -- Appeals -- Certiorari -- Petition for certiorari review of orders denying plaintiff's motion to amend a complaint filed by her and her deceased husband in order to state an action for wrongful death and plaintiff's motion to substitute herself, as personal representative of husband's estate, as the plaintiff -- Denial of motion to amend is not reviewable by certiorari where order of dismissal could be entered and plaintiff could then seek review by plenary appeal -- Petition dismissed for lack of jurisdiction -- Concern expressed over basis for circuit court's ruling, which relied upon district court opinion holding that when a personal injury plaintiff's death is the result of the personal injuries, an amendment to the personal injury complaint should not be permitted and a new, separate lawsuit for wrongful death must be filed, as new lawsuits could be barred as untimely under Engle even though original personal injury lawsuits were timely filed

CHARLEEN SKYRME, Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS USA, INC.; LORILLARD TOBACCO COMPANY; LORILLARD, INC.; LIGGETT GROUP, LLC (f/k/a Liggett Group, Inc., Liggett & Myers Tobacco Company); and VECTOR GROUP, LTD., INC. (f/k/a Brooke Group, Ltd.), Respondents. 2nd District.

Torts -- Civil procedure -- Relief from judgment -- Procedural due process -- No abuse of discretion in denying plaintiffs' motion for relief from summary judgment entered in favor of retailer in action alleging malicious prosecution and other claims arising out of arrest and prosecution of plaintiff for retail theft -- Plaintiffs were afforded both proper notice and a meaningful opportunity to be heard where it was undisputed that they were served with notice of summary judgment hearing approximately three months before hearing took place and raised no objections to either the scheduled date or duration of hearing in interim between receipt of notice and hearing; hearing was conducted in fair manner appropriate to nature of proceeding; and summary judgment was granted only after plaintiffs conceded the issue of probable cause

OSANNA S. CARMONA and NELSON L. CARMONA, Appellants, v. WAL-MART STORES, EAST, LP, Appellee. 2nd District.

Torts -- Automobile accident -- Rear-end collision -- Evidence -- Damages -- Claim that trial court, in granting plaintiff's motion in limine, improperly precluded defendants from presenting testimony that the amount of damages plaintiff was claiming was not reasonable or necessary for the injuries at issue was not preserved for appeal where no transcript of hearing on motion in limine was in the record and neither record nor brief revealed what specific testimony was excluded as a result of the motion in limine -- Trial court did not err in denying motion for directed verdict as to charges that plaintiff's physician violated section 456.052 by self-referring plaintiff for MRIs to a facility that the physician himself owned without making required disclosure, as it was unclear whether statute was, in fact, violated -- Argument -- Trial court did not abuse its discretion in denying defendant's motion for new trial based on cumulative effect of allegedly improper remarks made by plaintiff's counsel during closing argument where defendants failed to show that remarks were incurable, remarks were not as pervasive as defendants suggest, many of the remarks were fair reply to arguments made by defendants, and public's interest in system of justice was not impaired

AARMADA PROTECTION SYSTEMS 2000, INC. and JEFFREY STEVEN DUBLE, JR., Appellants, v. LANCE YANDELL and MAUREEN YANDELL, Appellees. 4th District.

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Insurance and health law, nursing homes, arbitration and lamb with rustic tomato, mint and onion coulis

Abuse & Neglect: FAMILY LOSES APPEALS COURT BID FOR EXTRA PENALTIES AGAINST HOSPITAL, Carter v. Prime Healthcare Paradise Valley, 7 No. 7 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice September 9, 2011

The children of a now-deceased man who allegedly received substandard care at a hospital did not meet pleading standards to pursue enhanced remedies under California's elder-abuse law, an state appellate panel has ruled. The 4th District Court of Appeal said the complaint filed by Roosevelt Grant's children did not show that Paradise Valley Hospital acted recklessly or maliciously in caring for their father, Roosevelt Grant.

Abuse & Neglect: FACILITY LOSES BID TO RETRY NEGLIGENCE SUIT AS MEDICAL MALPRACTICE, Vice v. Elmcroft of Hendersonville, 14 No. 5 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home September 9, 2011

The Tennessee Court of Appeals has upheld a $250,000 jury verdict against an assisted living facility for an elderly resident's falls, finding the claims sound in ordinary negligence and not medical malpractice. Cathy Vice's negligent-admission claims against Elmcroft of Hendersonville do not allege medical malpractice because there is no evidence that the facility relied on a medical professional's assessment when it admitted Vice's mother, the three-judge panel said.

 

Abuse & Neglect: HOSPITAL CAUSED MAGGOT INFESTATION OF WOUND SITE, SUIT SAYS, Kassem v. Holy Cross Hosp., 14 No. 5 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home September 9, 2011

A Chicago-area hospital's failure to provide proper medical care resulted in a maggot infestation of a stroke victim's wound site and may have caused his death, his family alleges in a state court lawsuit. The suit says the hospital's shoddy housekeeping, poor care in treating the wound site where the patient underwent a tracheostomy and overall negligence ultimately caused or contributed to his death Oct. 30, 2009

Abuse & Neglect: NURSING HOME STAFF PERFORMED 'LAP DANCE' ON ELDERLY MAN, SUIT ALLEGES, Roberts v. Mount Royal Towers, 14 No. 5 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home September 9, 2011

A 97-year-old Alzheimer's patient was abused and exploited when a worker at a residential facility performed a "lap dance" on him and posted a video of the incident on YouTube, his family claims in an Alabama lawsuit. Staff at Mount Royal Towers caused Walter A. Roberts to suffer humiliation, an invasion of privacy and unwanted publicity as a result of the video made and disseminated without his consent, the lawsuit says.

Arbitration Nursing Facility Agreement: ILLINOIS PANEL FINDS 'UNILATERAL' ARBITRATION AGREEMENT INVALID, Carter v. SSC Odin Operating Co., 14 No. 5 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home September 9, 2011

A deceased nursing home resident's estate is not bound by the terms of her arbitration agreement with the facility because the contract does not mutually obligate both parties, an Illinois appellate panel has ruled. On remand from the state Supreme Court, the 5th District Appellate Court said the arbitration agreements signed by Joyce Gott and her legal representative are governed by the Federal Arbitration Act, 9 U.S.C. 1-16, but unenforceable under the doctrine of mutuality of obligation

Autism and Insurance: JUDGE CERTIFIES CLASS IN AUTISM-THERAPY SUIT AGAINST CIGNA, Churchill v. Cigna Corp., 21 No. 48 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage September 9, 2011

A federal judge in Philadelphia has concluded that class certification is appropriate for a lawsuit alleging health insurer Cigna Corp. improperly refused to cover two types of behavioral treatments for people with autism. The proposed class of individuals denied benefits for treatment of autism spectrum meets federal certification requirements, U.S. District Judge Juan R. Snchez of the Eastern District of Pennsylvania said.

 

Autism: IN-SCHOOL AUTISM CARE COVERED, PENNSYLVANIA JUDGE SAYS, Burke v. Independence Blue Cross, 21 No. 48 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage September 9, 2011

A health insurance carrier must pay for treatment and therapy provided to an autistic child at his private elementary school despite an "in-school" exclusion, a Pennsylvania judge has ruled in a case of first impression. Judge Idee C. Fox of the Philadelphia County Court of Common Pleas held the Pennsylvania Autism Insurance Act, 40 Pa. Stat. 764h(a), requires health insurers to cover the behavioral analysis services provided by private schools to children with autism spectrum disorders.

Billing Fraud: DOCTORS, PHARMACISTS AMONG 26 CHARGED IN $37 MILLION BILLING FRAUD SCHEME, United States v. Patel, 14 No. 5 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home September 9, 2011

Four doctors, 12 pharmacists and 10 others have been charged in a grand jury indictment with allegedly participating in a large-scale scheme coupling the illegal distribution of prescription drugs with $37 million in fraudulent billing to Medicare, Medicaid and private insurers.

Coverage Dispute: FEDERAL JUDGE REJECTS COVERAGE FOR FARMER'S FATAL HEATSTROKE, Esparza v. Burlington Ins. Co., 7 No. 9 Westlaw Journal Insurance Bad Faith 4, Westlaw Journal Insurance Bad Faith September 7, 2011

An automobile exclusion in a California farm contractor's general liability policy precludes coverage in a dispute with the family of a laborer who died of heatstroke while loading grapes onto a truck, a federal judge has ruled. U.S. District Judge Lawrence J. O'Neill of the Eastern District of California said farm labor contractor Esparza Enterprises Inc. failed to demonstrate that its commercial general liability policy covered inadequate safety precautions for heat.

Coverage Dispute: INSUREDS' FAILURE TO PROVIDE DOCUMENTS NULLIFIES BAD-FAITH SUIT, Foster v. State Farm, 7 No. 9 Westlaw Journal Insurance Bad Faith 3, Westlaw Journal Insurance Bad Faith September 7, 2011

An Indiana federal judge has tossed out claims for breach of contract and bad faith in a fire-loss case in which the policyholders failed to provide requested documents a year after the fire because they thought the requests were unreasonable. "As a general matter, it should be noted that insureds cannot put conditions on their existing contractual duties," U.S. District Judge Theresa L. Springmann of the Northern District of Indiana said.

Disability: MISTAKEN IDENTITY ALLOWS INSURED TO PROCEED WITH BAD-FAITH SUIT, Barbour v. Unum Life Ins. Co. of Am., 7 No. 9 Westlaw Journal Insurance Bad Faith 1, Westlaw Journal Insurance Bad Faith September 7, 2011

A woman can proceed with claims that her insurance carriers acted in bad faith when they denied her disability benefits based on a surveillance video that they mistakenly believed was of her, a California federal judge has ruled. Finding that the insurers' conduct could be construed as "outrageous," U.S. District Judge William Q. Hayes of the Southern District of California also held that Patricia Barbour can move forward with her claim for intentional infliction of emotional distress.

 

 

Eating Disorders: CALIFORNIA LAW REQUIRES COVERAGE OF RESIDENTIAL TREATMENT FOR ANOREXIA, COURT RULES, Harlick v. Blue Shield of Cal., 21 No. 48 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage September 9, 2011

A California insurance law requires Blue Shield to cover residential treatment for a policyholder who suffered from an eating disorder, the 9th U.S. Circuit Court of Appeals has ruled. The three-judge panel said California health insurance carriers must provide all "medically necessary treatment" to policyholders with severe mental illnesses equal to those with physical problems.

Failure to Refer: PA. MAN SAYS FAMILY DOCTOR WASN'T QUALIFIED TO TREAT HIS EYE CONDITION, Salandro v. Jakubek, 7 No. 7 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice September 9, 2011

A Pennsylvania primary care physician's lack of the necessary skill and training to properly diagnose and treat a man's eye condition resulted in further injury and the need for a corneal transplant, according to a complaint filed in state court.

Full Faith and Credit: INSURERS WIN RACE TO COURTHOUSE IN CONTAMINATION DISPUTE, N. States Power Co. v. Cont'l Ins. Co., 21 No. 48 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage September 9, 2011

A Wisconsin appeals court has dismissed a policyholder's suit stemming from the alleged contamination of four former gas plants because a Minnesota judgment in favor of the defendant excess insurers was entitled to full faith and credit. The three-judge panel unanimously ruled the Minnesota judgment was entitled to full faith and credit because it was authenticated, final and rendered by a court with jurisdiction over the parties.

Hospital Negligence: TEEN'S DEATH WHILE HOSPITALIZED FOR SORE THROAT SPURS EXCESS DAMAGES CLAIM, Abbiehl v. Comm'r of Ins., 7 No. 7 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice September 9, 2011

An Indiana family whose daughter died two days after being admitted to a hospital for treatment of an inflamed and swollen throat is seeking $1 million in damages from a state malpractice fund. Amanda Abbiehl, 19, was admitted to St. Joseph's Regional Medical Center July 15, 2010, for treatment of dehydration and a swollen throat that prevented her from swallowing her own saliva, according to the petition for excess damages.

Household Exclusion: HOUSEHOLD EXCLUSION PRECLUDES COVERAGE OF AUTO ACCIDENT, State Farm v. Menendez, 21 No. 48 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage September 9, 2011

The Florida Supreme Court has ruled that the household exclusion in a State Farm auto policy bars coverage for bodily injuries suffered by members of the household of a permissive driver. Reversing a state appeals court, the unanimous high court said the household exclusion in Gilda Menendez's policy unambiguously applied to a driver given permission to drive her car and, therefore, could be enforced to eliminate coverage for bodily injuries sustained by the driver's parents.

Hurricane Irene: INSURANCE LAWSUITS TO FOLLOW IRENE, 21 No. 48 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage September 9, 2011

NEW YORK, Aug. 31 (Reuters) - As the water recedes from Hurricane Irene, lawyers are expecting disputes over insurance coverage to pour in. The biggest fights will stem from arguments over property damage and whether it resulted from wind or water, legal experts said. Similar questions arose in the aftermath of Hurricane Katrina six years ago.

 

Hurricane Katrina: OWNERS OF KATRINA-DAMAGED HOME LOSE BAD-FAITH CLAIMS, Jouve v. State Farm, 7 No. 9 Westlaw Journal Insurance Bad Faith 5, Westlaw Journal Insurance Bad Faith September 7, 2011

A Louisiana appeals court has tossed bad-faith claims filed by a pair of New Orleans homeowners who claimed their insurance carrier acted improperly when adjusting their claim for damage caused by Hurricane Katrina. The 4th Circuit Court of Appeal found no evidence that the insurer acted arbitrarily or capriciously in adjusting the claim.

 

Informed Consent: MAN'S TESTICLE REMOVED WITHOUT CONSENT, CALIFORNIA SUIT SAYS, Radillo v. Sanford, 7 No. 7 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice September 9, 2011

A Los Angeles man says in a lawsuit that he was shocked to find his left testicle had been removed after he consented only to an elective incision and drainage of an abscess. Richard Radillo says the unauthorized surgery depleted his testosterone and left him sterile, among other things. Radillo sued urologist Robert Sanford and his practice, Comprehensive Urology Medical Group, in the Los Angeles County Superior Court.

 

Informed Consent: KENTUCKY JURY FINDS NO MALPRACTICE IN PENIS AMPUTATION SUIT, Seaton v. Patterson, 7 No. 7 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice September 9, 2011

A Kentucky jury has cleared a urologist of negligence in the 2007 amputation of a man's penis, the Louisville Courier-Journal reported Aug. 25. Phillip Seaton said Dr. John M. Patterson amputated his penis during what was supposed to be a circumcision to treat an inflammation without first consulting him or giving him an opportunity to seek a second opinion (see West's Medical Malpractice Law Report, Vol. 4, Iss. 10).

General Fidelity Ins. Co. v. Foster ,(S.D.Fla.)

Insurance - Excessive elements in allegedly defective drywall were pollutants excluded from coverage under commercial general liability (CGL) policy.

The excessive elements of sulfur and strontium that allegedly comprised defective gypsum drywall were "pollutants" falling within certain commercial general liability (CGL) policies' pollution exclusion. A homeowner's personal injury and property damage that were allegedly caused by the insured contractors' use of the drywall to build her home thus were not covered under the policies and the insurer had no duty to defend the contractors from the homeowner's claims. The policy defined a pollutant as an "irritant" or "contaminant", the plain meaning of which encompassed the homeowner's claims that the drywall caused "damage and corrosion", including the "pitting and/or tarnishing" of metals, and "respiratory problems, sinus problems, eye problems, and nosebleeds."

Jury Verdict: ILLINOIS PANEL AFFIRMS DISMISSAL OF $1 MILLION NEGLIGENCE VERDICT, Garcia v. Seneca Nursing Home, 14 No. 5 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home September 9, 2011

An Illinois trial court properly vacated a $1 million jury verdict against a nursing home for the fall-related death of a mentally ill resident because the jurors' response to a special question was irreconcilable with the verdict, a state appeals court has ruled.

Legislation: FTC SAYS N.Y. BILL NIXING MAIL-ORDER MEDS HURTS CONSUMERS, 14 No. 5 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home September 9, 2011

A bill in New York that would restrict health insurers from steering beneficiaries to lower-cost mail-order providers of prescription drugs has drawn criticism from the Federal Trade Commission. In response to a request for comment from Republican state Sen. James L. Seward, the federal agency said New York Assembly Bill 5502-B could have anti- competitive effects for consumers. The bill is designed to give patients more choices of how and where their prescriptions are filled.

Life Insurance (Class Action): INSURER CALCULATES BENEFITS WITH FUNNY MATH, CLASS ACTION ALLEGES, Young v. Jackson Nat'l Life Ins., 7 No. 9 Westlaw Journal Insurance Bad Faith 7, Westlaw Journal Insurance Bad Faith September 7, 2011

Jackson National Life Insurance misleads customers about how it calculates death benefits and defrauds beneficiaries out of thousands of dollars, a life insurance beneficiary alleges in a California state court class action. When plaintiff David Young's mother passed away, he received benefits from her single-premium whole life policy with Jackson National, he says in the complaint filed in the Los Angeles County Superior Court.

Life Insurance: NEW YORK LIFE SUED OVER UNPAID INTEREST, Patel v. N.Y. Life Ins. Co., 7 No. 9 Westlaw Journal Insurance Bad Faith 6, Westlaw Journal Insurance Bad Faith September 7, 2011

A life insurance beneficiary has sued New York Life in Manhattan federal court, alleging the company paid a lower interest rate on her proceeds than the policy guaranteed. The class-action complaint filed by Vaijanti Patel in the U.S. District Court for the Southern District of New York accuses the company of breaching a contractual duty to pay a fixed interest rate of 3.5 percent of her policy proceeds.

Limitation-of-Action Clause: INSURER CAN ENFORCE LIMITATION-OF-ACTION CLAUSE, OHIO HIGH COURT SAYS, Dominish v. Nationwide Ins. Co., 21 No. 48 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage September 9, 2011

The Ohio Supreme Court has ruled that Nationwide Insurance Co. correctly denied coverage for damage to a house caused by a fallen tree because the policyholder failed to sue within the policy's one-year limitation period, which the insurer never waived. The 7-0 majority ruled that the homeowners policy plainly stated that any lawsuit to enforce its terms against Nationwide had to be commenced within a year of the loss or damage sustained.

Antitrust & Trade Regulation, Contracts, Insurance Law

Trailer Bridge, Inc. v. Illinois Nat'l Ins. Co. (11th Cir.)

Trailer Bridge appealed the district court's grant of summary judgment in favor of Illinois National on Trailer Bridge's complaint, alleging that Illinois National failed to defend Trailer Bridge in an underlying antitrust action and thereby breached its commercial general liability insurance policy issued to Trailer Bridge for the year July 2004 to July 2005. The central issue on appeal was whether the CEO's statement triggered the duty to defend under the "personal and advertising injury" provision in the policy. After review and oral argument, the court held that the district court did not err in granting summary judgment for Illinois National for the reasons set forth in the district court's order, which the court adopted as its own. In particular, the court agreed with the district court's rejection of Trailer Bridge's argument that the CEO's statement deployed the advertising idea of "another." The court rejected Trailer Bridge's contention that the use of a co-defendant's idea could qualify as an "offense" under the policy. The underlying plaintiffs sought only antitrust damages; they did not seek to impose any legal obligations upon the insured to pay them damages "because of . . . advertising injury." No facts were alleged in the underlying complaint on the basis of which the underlying plaintiffs might have recovered damages "because of . . advertising injury"; and the underlying plaintiffs could not have recovered such damages because the allegedly misappropriated "advertising idea" was not that of the underlying plaintiffs, but rather was alleged to have been the advertising idea of other parties altogether.

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Health and insurance law updates and garlic-lemon chicken with arugula tossed with walnuts, balsamic vinagrette and goat cheese

Insurance -- Discovery -- Claim file -- Privilege -- Trial court erred in ordering production of documents from insurer's claim file in first-party dispute over medical bills without considering attorney-client privilege objection -- Trial court further erred in ruling that claim file notes and other internal documents were not protected by work product privilege, in failing to consider objections to relevancy of documents sought and in overruling preserved objections to production without affording parties adequate notice and opportunity to be heard -- Order compelling production of materials for which attorney-client and work product privileges are invoked presents potential for irreparable harm warranting certiorari relief

VIEW OPINION

Insurance -- Coverage -- Amount of loss -- Appraisals -- Insured is not entitled to appraisal, where coverage for hurricane claim has been denied in its entirety because insurer has unequivocally stated that no coverage is available under policy and that policy is void -- Because issue of whether claim is covered by policy is a question for judicial determination, when the claim has been denied in its entirety based on lack of coverage, appraisal is not appropriate

Reported at 23 Fla. L. Weekly Fed. D9a

Insurance -- Hurricane damage to condominium -- Bad faith -- Certiorari -- Insurer's petition for writ of certiorari, seeking quashal of circuit court orders that allowed insured to amend complaint to add bad faith and punitive damages claims after appraisal award had been confirmed but before entry of final judgment on policy-phase issues -- Petition for writ of certiorari denied where insurer did not establish irreparable, material harm, a threshold requirement for issuance of writ of certiorari -- Order permitting amendment to add an allegedly premature bad faith claim does not satisfy irreparable harm requirement for certiorari -- Court recedes from decisions which have granted a petition for writ of certiorari when irreparable harm seems possible rather than imminent and which have broadly held that certiorari is available to challenge a premature bad faith claim or premature bad faith discovery

Reported at 36 Fla. L. Weekly D1558a

Insurance -- Personal injury protection -- Appellate attorney's fees -- Where circuit court appellate division reversed summary judgment which county court had entered in favor of insured's assignee in action against insurer, but affirmed county court order requiring insurer to pay expert witness fee for assignee's expert, circuit court departed from essential requirements of law in denying award of attorney's fees to assignee for prevailing on expert witness fee issue

Reported at 36 Fla. L. Weekly D1553b

Public Employee: FLORIDA PUBLIC EMPLOYEES SUE STATE OVER CHANGES IN RETIREMENT BENEFITS, Williams v. Scott, 21 No. 40 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 15, 2011

A group of 11 public employees has sued the state of Florida, claiming that the government cannot legally make changes to its retirement system with respect to salary deductions and cost-of-living adjustments. The plaintiffs claim that the plan in Senate Bill 2100, which was signed by Republican Gov. Rick Scott June 22 and took effect July 1, violates the Florida Constitution. They say the plan interferes with the deal they and others had with the state and impairs their right to collectively bargain.

Auto: BUS OPERATOR, DRIVER NOT COVERED FOR PASSENGERS' TB INFECTIONS, Lancer Ins. Co. v. Garcia Holiday Tours, 21 No. 40 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 15, 2011

An auto insurer is not required to cover a $5 million verdict against a tour bus operator and a driver for transmitting tuberculosis to passengers, the Texas Supreme Court has ruled in an issue of first impression. The passengers' exposure to the disease resulted from causes other than the use of the bus, the high court said, reversing a state appeals court decision against Lancer Insurance Co.According to the opinion, a driver for tour bus operator Garcia Holiday Tours was infected with tuberculosis.

Right to Jury Trial: INSUREDS ENTITLED TO JURY TRIAL ON BAD-FAITH CLAIMS, N.J. HIGH COURT SAYS, Wood v. N.J. Mfrs. Ins. Co., 21 No. 40 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage July 15, 2011

In a case of first impression, New Jersey's highest court has determined that policyholders' bad-faith claims against their insurance company for failure to settle within policy limits are traditional contract claims that give insureds the right to a trial by jury. "Fundamentally, and regardless of how it is couched or what label is affixed to it, a Rova Farms bad-faith claim is and always has been a breach-of- contract claim.”

Health Benefits: FEDS ABANDON SAME-SEX MARRIAGE BAN BUT FIGHT SPOUSAL HEALTH BENEFITS, Golinski v. Office of Pers. Mgmt., 21 No. 40 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage July 15, 2011

The Justice Department has reversed course in a federal employee's lawsuit accusing the United States of unlawfully refusing to offer same-sex couples equal health care options, now saying the law banning recognition of same-sex marriage is unconstitutional. The government's about-face came in response to employee Karen Golinski's summary judgment motion filed in the U.S. District Court for the Northern District of California.

Discrimination: MORTGAGE INSURER BIASED AGAINST WOMEN ON MATERNITY LEAVE, U.S. SAYS, United States v. Mortgage Guaranty Ins. Corp., 21 No. 40 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 15, 2011

The Justice Department alleges in a Pennsylvania federal court lawsuit that Mortgage Guaranty Insurance Corp. discriminates against women who are on maternity leave by refusing to insure their mortgages. The government says MGIC's allegedly biased practices violate the Fair Housing Act, 42 U.S.C. 3601, which prohibits discrimination in housing and mortgage lending based on race, color, religion, national origin, gender, disability and familial status.

Employee Theft: NO COVERAGE FOR CUSTOMER LISTS STOLEN BEFORE POLICY ISSUED, JUDGE RULES, Response Pers. v. Hartford Fire Ins. Co., 21 No. 40 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 15, 2011

An insurance policy's discovery provision barred coverage for the alleged theft of customer lists by a staffing agency's former employees because the agency knew about its losses two years before the policy was even issued, a New York federal judge has ruled. U.S. District Judge Denise Cote of the Southern District of New York found that when Response Personnel Inc. sued the employees in 2004 over the allegedly stolen customer lists, the staffing firm acknowledged its losses.

Life Insurance: METLIFE RENEGED ON LIFETIME BENEFITS GUARANTEE, GM RETIREES SAY, Haviland v. MetLife, 21 No. 40 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage July 15, 2011

Forty-five retired General Motors workers have filed a class-action lawsuit in Michigan state court, accusing Metropolitan Life Insurance Co. of unlawfully reducing their guaranteed life insurance benefits. The retirees sued MetLife in the Wayne County Circuit Court over a promise that they would receive full life insurance benefits for the rest of their lives. The complaint states claims for conversion, unjust enrichment, breach of contract, fraud, intentional infliction of emotional distress.

Life Insurance: NEW YORK SUBPOENAS 9 LIFE INSURANCE COMPANIES, SOURCE SAYS, 21 No. 40 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 15, 2011

NEW YORK, July 5 (Reuters) - New York's top legal officer has sent subpoenas to nine leading life insurers, seeking information about their practices in identifying and paying out policies for deceased customers, according to a person familiar with the matter. New York Attorney General Eric Schneiderman sent subpoenas in June to units of AXA SA, Genworth Financial Inc., Guardian Life Insurance Co. of America, Manulife Financial Corp., Massachusetts Mutual Life Insurance Co., MetLife Inc., etc.

Title Insurance: CALIFORNIA FEDERAL JUDGE ORDERS ARBITRATION IN TITLE INSURANCE DISPUTE, In re Cal. Title Ins. Antitrust Litig., 21 No. 40 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage July 15, 2011

A class-action dispute over whether the nation's largest title insurers and their affiliates monopolized California's title insurance market should be arbitrated in light of a recent U.S. Supreme Court decision, a federal judge in San Francisco has ruled. U.S. District Judge Jeffrey S. White of the Northern District of California agreed with five title insurance companies and their affiliates that the Supreme Court's ruling in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), allowed it.

Mold Damage: COVERAGE DENIAL FOR MOLD DAMAGE NOT BAD FAITH, Rooters v. State Farm, 21 No. 40 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage July 15, 2011

An insurance carrier did not act in bad faith when it refused to pay an insured for mold damage caused by a hailstorm where the policy contained a mold exclusion, the 5th U.S. Circuit Court of Appeals has ruled. The three-judge panel rejected the insured's argument that the carrier should pay to clean up the mold infestation because the condition was caused by water intrusion, a covered peril.Siding with the insurer, the court relied on Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006).

Chinese Drywall: CHINESE DRYWALL-RELATED LOSS NOT AN 'ACCIDENT' FOR COVERAGE PURPOSES, Lopez v. Shelter Ins., 21 No. 40 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage July 15, 2011

An insurance carrier did not act in bad-faith by denying coverage for personal injuries and damage caused by Chinese drywall as the loss was not caused by an "accident," a Mississippi federal judge has ruled. U.S. District Judge Tom S. Lee of the Southern District of Mississippi also ruled that the drywall-related loss was subject to policy exclusions for "contamination" and "faulty materials."In December 2007 Ron and Christie Lopez bought a newly constructed home in Waynesboro, Miss.

Kickbacks: 3RD CIRCUIT REVIVES KICKBACK CLAIM AGAINST HEALTH INSURER, United States v. United Health Group, 21 No. 40 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage July 15, 2011

The 3rd U.S. Circuit Court of Appeals has reinstated a claim accusing insurer United Health Group and a subsidiary of violating the False Claims Act by offering illegal kickbacks to a medical clinic and doctors. Two whistle-blowing former employees properly pleaded the claim under an "implied false certification" theory by asserting that the insurers received Medicare reimbursements despite their "knowing violation" of the Anti-Kickback Statute, the panel said.

Torts -- Medical malpractice -- Attorney's fees -- Trial court erred in awarding attorney's fees and costs pursuant to section 57.105(1) following a mistrial after plaintiff's counsel presented the idea of “doctoring of records” for the first time during voir dire -- Section 57.105(1) is conditioned on section 57.105(4), which states that the motion for attorney's fees may not be filed with the court unless, within twenty-one days of service, the challenged allegation is not withdrawn or appropriately corrected -- Because plaintiff's counsel alleged the “doctoring of records” during jury selection, there was no way to withdraw or appropriately correct that allegation within 21 days after service of the motion, and thus section 57.105(1) was inapplicable -- Even if section 57.105(1) applied, it was impossible for plaintiff to allege such fraud and spoilation in the complaint where the fraud alleged was not fraud on the plaintiff but fraud on the court based on documents obtained during discovery -- Additionally, no independent cause of action exists for first-party spoilation of evidence -- Costs -- An award of costs is not allowed under section 57.105(1), which expressly provides for attorney's fees but makes no mention of costs -- Where nothing in the record suggests that plaintiff's counsel acted in bad faith, trial court could not impose fees pursuant to its inherent authority -- Trial court did not err in granting motion in limine to preclude plaintiff from referencing alleged alteration and concealment of records during second trial where reasonable persons could differ as to whether plaintiff possessed sufficient proof to attack defendant's credibility based on discrepancies in testimony between defendant and other witnesses -- Likewise, trial court's curative instruction to the jury that there was no evidence adduced at trial that records were added following plaintiff's counsel's statements alleging defendant altered records was an appropriate response given that the plaintiff's counsel's statements violated the court's order granting the motion in limine

Reported at 36 Fla. L. Weekly D1562a

Feres Doctrine: SUPREME COURT WON'T HEAR CHALLENGE TO FERES DOCTRINE, Witt v. United States, 7 No. 3 Westlaw Journal Medical Malpractice 1, Westlaw Journal Medical Malpractice July 15, 2011

The U.S. Supreme Court has declined to consider whether a federal law that protects the government from liability for injuries stemming from military service applies to a case involving an Air Force official who died during a botched intubation at a military hospital. U.S. Air Force Staff Sgt. Dean Patrick Witt was hospitalized Oct. 10, 2003, for a "routine" appendectomy at Travis Air Force Base in Fairfield, Calif., court filings say.

Wrongful Death: MICHAEL JACKSON'S DOCTOR SAYS POP STAR GAVE HIMSELF LETHAL DOSE, Jackson v. Murray, 7 No. 3 Westlaw Journal Medical Malpractice 2, Westlaw Journal Medical Malpractice July 15, 2011

The physician implicated in the death of Michael Jackson has alleged in response to a wrongful-death lawsuit filed by Jackson's father that the pop star self-administered the drugs that killed him. Dr. Conrad Murray raises the affirmative defense of assumption of risk in an answer filed in the Los Angeles County Superior Court. He says Jackson "clandestinely self-administered or self-ingested" propofol or other medications the day he died and is therefore responsible for his own death.

Abuse & Neglect: FACILITY'S NEGLECT LANDED MENTALLY ILL MAN IN HOSPICE, SUIT SAYS, McMurtrey v. Northway Health & Rehab., 7 No. 3 Westlaw Journal Medical Malpractice 3, Westlaw Journal Medical Malpractice July 15, 2011

An Alabama nursing facility abused a paranoid schizophrenic resident by allowing him to develop severe pressure sores that resulted in surgery and hospice care, a state court lawsuit alleges. James Ratchford will likely die from the infected sores he developed because of negligent care at Northway Health & Rehabilitation, his cousin Amy McMurtrey claims in a complaint filed in the Jefferson County Circuit Court. According to the lawsuit, Ratchford entered the facility in October 2010 for treatment.

Defective Syringe: PENNSYLVANIA FEDERAL JUDGE DISMISSES SYRINGE DEFECT SUIT, Pusey v. Becton Dickinson & Co., 7 No. 3 Westlaw Journal Medical Malpractice 4, Westlaw Journal Medical Malpractice July 15, 2011

A federal judge in Philadelphia has dismissed a woman's negligence and strict liability suit against Becton Dickinson & Co., finding she cannot prove that a syringe used during a medical procedure caused a bacterial infection in her chest. In dismissing the case, U.S. District Judge Stewart Dalzell said plaintiff Judith Pusey failed to exclude other possible sources of the infection.Pusey said a Becton Dickinson 60-milliliter Luer-Lok syringe caused her infection.  

Expert Testimony: MISSISSIPPI FEDERAL JUDGE TOSSES SUIT OVER DIALYSIS MACHINE INJURY, Cothren v. Baxter Healthcare Corp., 7 No. 3 Westlaw Journal Medical Malpractice 5, Westlaw Journal Medical Malpractice July 15, 2011

Baxter Healthcare Corp. has won summary judgment in a Mississippi product defect lawsuit as a federal judge ruled that a user of its kidney dialysis machine failed to meet a state law requirement to present expert testimony. Amanda Cothren sued the Illinois-based medical equipment maker in 2010 in Mississippi state court, claiming she was injured when her Home Choice Pro automated peritoneal dialysis cycler caused internal injuries because it failed to turn off after each operation cycle.

Independent Medical Examination: MISSOURI HIGH COURT: INDEPENDENT MEDICAL EXAM TRIGGERED NEED FOR AFFIDAVIT OF MERIT, Devitre v. Orthopedic Ctr. of St. Louis, 7 No. 3 Westlaw Journal Medical Malpractice 6, Westlaw Journal Medical Malpractice July 15, 2011

A Missouri man's lawsuit against an orthopedist he said injured him during an independent medical examination was properly dismissed for failure to file an affidavit of merit from a legally qualified health care provider, the state's highest court has ruled. The 6-1 court ruled that the IME was a "health care service that created a limited physician-patient relationship" between the man and the doctor and therefore triggered the state law requiring the filing of an affidavit of merit.

Insurance Coverage Dispute: 5TH CIRCUIT REJECTS COVERAGE FOR OMISSIONS IN RECOMMENDATION LETTER, Preau v. St. Paul Fire & Marine Ins. Co., 7 No. 3 Westlaw Journal Medical Malpractice 7, Westlaw Journal Medical Malpractice July 15, 2011

The 5th U.S. Circuit Court of Appeals has rejected coverage for an $8.2 million verdict against a company owner who omitted in a letter of recommendation that an anesthesiologist employee was fired for abusing Valium and ignoring a page. The unanimous panel said the verdict was attributed to the owner's negligent misrepresentation, not to the anesthesiologist's subsequent improper treatment of a patient at his new employer. The patient's bodily injury would have been covered by the policy.

Physician Error: GOVERNMENT SETTLES LAWSUIT OVER RUPTURED EYEBALL FOR $925K, Goncalves v. United States, 7 No. 3 Westlaw Journal Medical Malpractice 8, Westlaw Journal Medical Malpractice July 15, 2011

The U.S. government will pay nearly $1 million to settle a lawsuit filed by a Connecticut Army veteran who was blinded in one eye after a doctor injected a local anesthetic into his eyeball instead of behind it. The injury to Jose Goncalves' right eye occurred Nov. 1, 2007, at the West Haven Veterans Affairs Hospital during what should have been routine surgery to remove a cataract, according to the complaint filed in the U.S. District Court for the District of Connecticut.

Surgical Error: ILLINOIS MAN BLAMES SURGEON AND FAILURE OF NERVE MONITOR FOR FACIAL PARALYSIS, Wellmaker v. Touchette Reg'l Hosp., 7 No. 3 Westlaw Journal Medical Malpractice 9, Westlaw Journal Medical Malpractice July 15, 2011

An Illinois surgeon, hospital and Medtronic Inc. are among those being sued by a man who says he suffers from partial facial paralysis because the surgeon severed a facial nerve after a Medtronic nerve monitoring system failed during removal of a tumor. Ralph Wellmaker seeks more than $300,000 in damages for the injuries he says he sustained when the NIM nerve monitoring system malfunctioned during his facial operation at Touchette Regional Hospital in Centerville, Ill.

Wrong-Side Surgery: WRONG-SIDE SURGERY SPURS ALABAMA LAWSUIT, Miller v. Univ. of Ala. Health Servs. Found., 7 No. 3 Westlaw Journal Medical Malpractice 10, Westlaw Journal Medical Malpractice July 15, 2011

An Alabama woman says she awoke from surgery to remove a tumor in the area below her right shoulder only to find that the surgeons had operated on her left side instead. Virginia Miller alleges Drs. Martin J. Heslin and Aaron Hoffman negligently operated on the wrong side even though she had had several X-rays and a CT scan that showed the tissue mass was in her right subscapular region. Miller says the radiological examinations were reported to and reviewed by both physicians.

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Peppermint chocolate truffles and healthy insurance developments

Health Care Reform: VIRGINIA FEDERAL JUDGE DERAILS PART OF HEALTH CARE REFORM LAW, Commonwealth v. Sebelius, 18 No. 8 Westlaw Journal Health Law 1, Westlaw Journal Health Law December 21, 2010
A federal judge in Virginia has rejected a key part of President Obama's health care reform law, ruling it is unconstitutional to require people to purchase or obtain health insurance or face a penalty. U.S. District Judge Henry Hudson of the Eastern District of Virginia is the first jurist in the country to rule that Congress exceeded its constitutional authority in setting the minimum-coverage mandate."An individual's personal decision to purchase, or decline purchase, of health insurance.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT LOUISIANA, SUIT SAYS, Pitts v. Greenstein, 18 No. 8 Westlaw Journal Health Law 2, Westlaw Journal Health Law December 21, 2010
Several low-income Louisiana residents say that although the state has announced budgetary cuts to home services, it has no clear plan to prevent nearly 11,000 needy people from being institutionalized in nursing facilities. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, filed a class-action lawsuit, asserting the state's Department of Health and Hospitals is poised to slash its long-term personal care services program to help shore up a $1.6 million budget.

Medicare Fraud: CLINIC OWNERS GET PRISON FOR STEALING MEDICARE FUNDS, United States v. Pearson, 18 No. 8 Westlaw Journal Health Law 3, Westlaw Journal Health Law December 21, 2010
The owners of a defunct Mississippi clinic accused of cheating Medicare and Medicaid of millions of dollars have been sentenced to federal prison. U.S. District Judge Keith Starrett of the Southern District of Mississippi sentenced Theddis Marcel Pearson and Telandra Gail Jones to 10 years in prison and ordered them to pay $18 million in restitution. He also ordered them to forfeit $3.6 million in cash already seized by federal authorities.The defendants owned Statewide Physical Medicine Group.

Dental Malpractice: NEGLIGENT TOOTH EXTRACTION CAUSED WOMAN'S BLINDNESS, SUIT SAYS, Harrison v. United States, 18 No. 8 Westlaw Journal Health Law 4, Westlaw Journal Health Law December 21, 2010
A Kentucky woman says her sinus cavity was punctured during a tooth extraction at a federally operated health clinic, which caused life-threatening injuries and complete vision loss in her left eye. According to the complaint filed in the U.S. District Court for the Eastern District of Kentucky, Tammy Harrison saw Dr. Chaz Vose, a dentist at the White House Clinics-Berea, Aug. 20, 2009, to repair a cavity in her upper left molar. Vose performed an extraction that day.

Medical Device: MEDICAL DEVICE SUPPLIER ISN'T 'HEALTH CARE PROVIDER', Orthopedic Res. v. Swindell, 18 No. 8 Westlaw Journal Health Law 5, Westlaw Journal Health Law December 21, 2010
A trial court correctly determined that a medical device distributor is not a "health care provider" in the context of a Texas law requiring that plaintiffs file expert reports to accompany medical malpractice lawsuits, a state appeals court has found. A three-judge panel of the Court of Appeals in Dallas said distributor JTW Medical Products Inc. was acting outside the scope of its contract with a health care provider when its president allegedly gave a patient's husband faulty information.

Medical Malpractice: DOCTOR'S NEGLIGENCE, NOT MAN'S INTOXICATION, CAUSED INJURY, Beebe v. Hartman, 18 No. 8 Westlaw Journal Health Law 6, Westlaw Journal Health Law December 21, 2010
A Michigan appeals court has ruled that a Michigan man's intoxication at the time of a snowmobiling accident does not shield his doctor from malpractice liability allegedly associated with the treatment of his injuries. The ruling reverses the Branch County Circuit Court's order granting summary judgment to Dr. Christina Sheely and her practice pursuant to Mich. Comp. Laws 600.2955a.The law provides an absolute defense in an action over the death or injury of a person when alcohol impairment.

Nursing Homes: PATIENTS SUFFER SUB-PAR CARE AT CALIFORNIA FACILITIES, CLASS ACTION SAYS, Valentine v. Thekkek Health Servs., 18 No. 8 Westlaw Journal Health Law 7, Westlaw Journal Health Law December 21, 2010
A group of California skilled nursing facilities operated by Paksn Inc. has "systematically" failed to meet state minimums for direct patient care and staffing, according to a state court class action. Maryann N. Valentine says Vacaville, Calif.-based Paksn, Thekkek Health Services, and seven nursing homes and licensees owned by Antony and Prema Thekkek have continuously failed to provide 3.2 hours of daily, direct nursing care to each patient as mandated by Cal. Health & Safety Code.

Nursing Homes: HOME'S NEGLECT CAUSED ACTOR GENE BARRY'S DEATH, FAMILY SAYS, Barry v. Sunrise of Woodland Hills, 18 No. 8 Westlaw Journal Health Law 8, Westlaw Journal Health Law December 21, 2010
The children of film and television actor Gene Barry have alleged in a California state court lawsuit that a Los Angeles-area nursing home caused his death by neglecting to monitor his condition after a debilitating fall. According to the complaint filed in the Los Angeles County Superior Court, Sunrise of Woodland Hills admitted Barry in 2009 despite knowing it was not equipped to meet his needs as an Alzheimer's and dementia sufferer.

Pharmaceuticals: GLAXO AND SUBSIDIARY SETTLE CIVIL, CRIMINAL CASES FOR $750 MILLION, United States v. GlaxoSmithKline, 18 No. 8 Westlaw Journal Health Law 9, Westlaw Journal Health Law December 21, 2010
Pharmaceutical firm GlaxoSmithKline has agreed to pay the government $600 million, and its SB Pharmco subsidiary will plead guilty to violating federal law and pay a $150 million fine for shoddy drug manufacturing at a Puerto Rico plant. The civil and criminal cases were based on violations of the Food, Drug and Cosmetic Act, 21 U.S.C. 351(a)(2)(B), at SB Pharmco's now-closed plant in Cidra, Puerto Rico.

Obstruction of Justice: FORMER GLAXO LAWYER CHARGED WITH OBSTRUCTION IN 'OFF-LABEL MARKETING' CASE, United States v. Stevens, 18 No. 8 Westlaw Journal Health Law 10, Westlaw Journal Health Law December 21, 2010
A former vice president and in-house counsel at GlaxoSmithKline has been indicted for allegedly withholding documents from the Food and Drug Administration during an investigation into the marketing of an antidepressant for unapproved uses. The Justice Department identified the attorney as Lauren Stevens, of Durham, N.C. The charges were filed in the U.S. District Court for the District of Maryland. Although the drug and the name of Stevens' employer were not disclosed in the agency's statement.

Wrongful Death: LACK OF BLOOD FOR DYING MOM COSTS MINNESOTA HOSPITAL $4.6 MILLION, Calcagno v. Emery, 18 No. 8 Westlaw Journal Health Law 11, Westlaw Journal Health Law December 21, 2010
A Minnesota jury has awarded $4.6 million to the family of woman who died following the birth of her first child because the hospital did not have enough blood for a transfusion. Claudia Calcagno, 36, died hours after giving birth to her son Jan. 18, 2008, at Monticello-Big Lake Community Hospital, according to the complaint filed in the Wright County District Court. Calcagno bled to death after Drs. Jennifer Emery and Timothy Olson could not perform a lifesaving transfusion.

News in Brief: NEWS IN BRIEF, 18 No. 8 Westlaw Journal Health Law 12, Westlaw Journal Health Law December 21, 2010
Christian group to challenge health care reform ruling A Christian legal group says it will challenge a federal judge's decision allowing the government to require uninsured individuals to purchase health insurance coverage. U.S. District Judge George Caram Steeh denied the Thomas More Law Center's request for an injunction against a provision in the Patient Protection and Affordable Care Act that imposes a penalty on anyone who fails to buy or otherwise obtain health insurance by 2014.
Automotive (Personal Jurisdiction): OVERSEAS GOODYEAR COMPANIES SAY THEY CAN'T BE SUED IN U.S., Goodyear Luxembourg Tires v. Brown, 21 No. 12 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage December 23, 2010
Goodyear companies based in Luxembourg, Turkey and France argue in a merits brief to the U.S. Supreme Court that they should not be subject to jurisdiction in this country simply because their products are sold here. "The exercise of general jurisdiction over petitioners, simply because their products reached North Carolina through the stream of commerce, violates the due-process clause," the companies say.
Automotive (Preemption): TRIAL LAWYERS: PREEMPTION RULING DENIED 'RIGHT TO LEGAL RECOURSE FOR INJURY', Williamson v. Mazda Motor Am., 21 No. 12 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage December 23, 2010
The American Association for Justice says in an amicus brief filed with the U.S. Supreme Court that a California appeals court's ruling in a seat belt case "expands the doctrine of preemption far beyond its constitutional foundation." The group also says the decision denied the plaintiffs a valid remedy for wrongful death. The plaintiffs are Delbert and Alexa Williamson, the husband and daughter, respectively, of accident victim Thanh Williamson.

Bankruptcy: SUPREME COURT HEARS BANKRUPTCY CASE OVER OWNERSHIP COSTS FOR VEHICLES, Ransom v. MBNA Am. Bank, 21 No. 12 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Oct. 4 in a dispute over whether Chapter 13 debtors who own vehicles free and clear of any obligations can take the standard "ownership costs" deduction when calculating their projected disposable income. At issue is a 2009 decision by the 9th U.S. Circuit Court of Appeals that above-median-income debtors can deduct vehicle ownership expenses only if they are actually making automobile loan or lease payments.
Bankruptcy: FEDS, TRUSTEES GROUP BACK ANNA NICOLE SMITH'S ESTATE IN SUPREME COURT, Stern v. Marshall, 21 No. 12 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage December 23, 2010
The federal government and a group of bankruptcy trustees have told the U.S. Supreme Court that a bankruptcy judge had the authority to award Anna Nicole Smith a huge chunk of her billionaire husband's estate. Acting U.S. Solicitor General Neal Katyal and the National Association of Bankruptcy Trustees filed separate amicus briefs supporting Smith's former boyfriend and lawyer, Howard K. Stern, in his bid to reinstate the late bombshell's inheritance.Stern claims the 9th U.S. Circuit Court of Appeals.
Class Action: SUPREME COURT TO DECIDE IF STATES CAN BAN CLASS-ACTION WAIVERS, AT&T Mobility v. Concepcion, 21 No. 12 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage December 23, 2010
In a case that could affect the future of class-action litigation, the U.S. Supreme Court heard oral argument Nov. 9 to determine if federal arbitration law preempts state laws that ban class-action waivers in contracts. AT&T Wireless customers filed three suits in California federal court in 2005 and 2006, alleging the telecom fraudulently charged $30 in sales tax for phones it advertised as "free." Although the company tried to force the plaintiffs to arbitrate their claims.
Class Action (Pharmaceuticals): HIGH COURT TAKES UP CLASS CERTIFICATION FIGHT IN SUIT OVER RECALLED DRUG, Smith v. Bayer Corp., 21 No. 12 Westlaw Journal Insurance Coverage 7, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will hear oral argument Jan. 18 over whether a West Virginia man's proposed state court class action over the cholesterol drug Baycol was properly blocked because a similar suit had already been rejected by a Minnesota federal court. Keith Smith filed a proposed economic-loss class action against Baycol maker Bayer Corp. in a West Virginia state court shortly after the drug's 2001 recall. The suit was dismissed in a ruling later affirmed by the 8th U.S. Circuit Court of Appeals.

Class Action (Employment): WAL-MART GETS HIGH COURT TO HEAR LARGEST-EVER CLASS ACTION, Wal-Mart Stores v. Dukes, 21 No. 12 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage December 23, 2010
In a move that is expected to permanently change the landscape of class- action lawsuits, the U.S. Supreme Court has agreed to hear Wal-Mart Stores' challenge to a gender discrimination lawsuit with 1.5 million potential plaintiffs. "While not unprecedented, the Supreme Court's decision to address this issue likely signals that it intends to review the underpinnings of the expansive class certified in this case and the extent to which the pursuit of punitive damages impacts the certification.

Computer & Internet (First Amendment): CALIFORNIA, VIDEO GAME INDUSTRY GO TO BATTLE OVER VIOLENT-GAMES BAN, Schwarzenegger v. Entm't Merchants Ass'n, 21 No. 12 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard oral argument Nov. 2 in California's bid to reinstate its ban on the sale of violent video games to minors. The state is challenging a decision of the 9th U.S. Circuit Court of Appeals that struck down the law last year. Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).The appeals court upheld a ruling in favor of the Entertainment Software Association and the Video Software Dealers Association, two industry trade groups that sued the state.

Employment (Roundup): SUPREME COURT AGREES TO SETTLE EMPLOYMENT LAW CONFLICTS, 21 No. 12 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage December 23, 2010
So far this term, the U.S. Supreme Court has agreed to review eight employment-related lawsuits, including Wal-Mart Stores v. Dukes, by far the most watched case this year. Dukes is a huge gender-bias class action with a potential plaintiff class of 1.5 million women and billions in damages. This roundup looks at six of those cases, which cover a range of topics, including workplace privacy, third-party retaliation, liability for employment of "unauthorized aliens".

Employment: JUSTICES TO DECIDE IF ORAL COMPLAINT COVERED BY WAGE-AND-HOUR STATUTE, Kasten v. Saint-Gobain Performance Plastics Corp., 21 No. 12 Westlaw Journal Insurance Coverage 11, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard argument in October in a case where an employer accused of retaliation under a federal wage-and-hour law has defended itself by arguing the fired employee's oral complaint is not protected under the statute. A decision in the case is expected to have huge ramifications for workers who hope to prove that they were targeted for retaliation because they engaged in a protected activity. This is especially relevant given the fact that employees frequently complain orally.

Environmental: CLIMATE CHANGE CASE HEADS TO SUPREME COURT, Am. Elec. Power Co. v. Connecticut, 21 No. 12 Westlaw Journal Insurance Coverage 12, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court said Dec. 6 it would review an appeals court decision that revived a public nuisance lawsuit against several power companies by eight states seeking to reduce greenhouse gas emissions from coal-burning facilities. The companies want the high court to decide whether judges can regulate greenhouse gas emissions at the behest of states and private parties and, if so, under what standards. Attorney Richard Faulk of Gardere Wynne Sewell.
Government Contract: STATE SECRETS PRIVILEGE TESTED IN GOVERNMENT CONTRACT CASE, Gen. Dynamics Corp. v. United States, 21 No. 12 Westlaw Journal Insurance Coverage 13, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court will be determining the role of the state secrets privilege in a lawsuit brought by two companies challenging the government's termination of their contract to build Navy jets. The high court agreed to hear the case Sept. 28 upon the request of both Boeing Co., as the successor to McDonnell Douglas Corp., and General Dynamics Corp. The companies are asking the Supreme Court to decide whether the government can assert the state secrets privilege.

Intellectual Property (Patent Infringement): STANDARD FOR INDUCEMENT OF PATENT INFRINGEMENT IS BEFORE HIGH COURT, Global-Tech Appliances v. SEB S.A., 21 No. 12 Westlaw Journal Insurance Coverage 14, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether "deliberate indifference" is the correct standard for the "state of mind" element in a claim for active inducement of patent infringement. Petitioner Pentalpha Enterprises Ltd. argues that the U.S. Court of Appeals for the Federal Circuit got it wrong when it applied the deliberate- indifference standard. The appeals court should have used the "purposeful, culpable expression and conduct" standard applied by the Supreme Court in MGM Studios.
Intellectual Property: UNIVERSITY'S PATENT RIGHTS BATTLE WITH BIOTECH FIRM ON COURT'S DOCKET, Stanford Univ. v. Roche Molecular Sys., 21 No. 12 Westlaw Journal Insurance Coverage 16, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court has agreed to decide whether a federal law pertaining to government contractors' patent assignment rights barred a Stanford University researcher from assigning his rights to a third party. In its petition for certiorari Stanford said the U.S. Court of Appeals for the Federal Circuit was wrong when it said no. Opposing Stanford is Roche Molecular Systems, which says the Federal Circuit correctly decided that the Bayh-Dole Act, 35 U.S.C. 200, did not bar the assignment.

Pharmaceutical (Preemption): COURT TO RULE ON PREEMPTION OF STATE LAW CLAIMS AGAINST VACCINE MAKERS, Bruesewitz v. Wyeth Inc., 21 No. 12 Westlaw Journal Insurance Coverage 17, Westlaw Journal Insurance Coverage December 23, 2010
In oral argument held Oct. 12 the U.S. Supreme Court grappled with the question of whether the National Childhood Vaccine Injury Act bars all design defect claims or whether a family has recourse for an injury in state court. The case was argued before eight justices. Justice Elena Kagan recused herself because she was serving as U.S. solicitor general when the government submitted an amicus brief urging the high court to review the case.A 4-4 tie would result in a win for defendant Wyeth Inc.

Securities Litigation & Regulation (Fraud): JUSTICES WEIGH ARGUMENTS ON INVESTMENT ADVISERS' 'MISLEADING' STATEMENTS, Janus Capital Group v. First Derivative Traders, 21 No. 12 Westlaw Journal Insurance Coverage 18, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court heard arguments Dec. 7 in a case that will decide whether shareholders can sue mutual fund manager Janus Capital Group for allegedly helping to mislead investors. The plaintiff, First Derivative Traders, traded shares of Janus stock and alleged that the stock price was artificially inflated as a result of misleading statements in the prospectuses. In November several groups filed amicus briefs supporting the plaintiff's position.

Securities Litigation & Regulation (Fraud): HIGH COURT TO RULE ON DRUG COMPANIES' DUTY TO DISCLOSE 'ADVERSE EVENTS', Matrixx Initiatives v. Siracusano, 21 No. 12 Westlaw Journal Insurance Coverage 19, Westlaw Journal Insurance Coverage December 23, 2010
The U.S. Supreme Court is set to hear arguments in a securities fraud case that has the pharmaceutical industry alarmed over the prospect of having to disclose to investors so-called "adverse event reports" even when those reports are statistically trivial. Adverse event reports are anecdotal complaints from users indicating harm from a pharmaceutical product. The case involves Zicam, an over-the-counter cold remedy marketed by defendant Matrixx Initiatives Inc.

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