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 coverage, appellate court sanctions, and poached eggs on wild baby salad greens with garlic balsamic and olive oil vinagrette and homemade croutons and shaved parmesan

Arbitration Agreement: FLORIDA HIGH COURT REJECTS DAMAGES CAPS IN ARBITRATION AGREEMENTS, Gessa v. Manor Care of Fla., 14 No. 11 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home December 2, 2011

Provisions in a nursing home's arbitration agreement that limit a resident's potential noneconomic damages to $250,000 and bar the recovery of punitive damages violate public policy and are unenforceable, the Florida Supreme Court has ruled. The court's 4-2 majority said the limitation-of-liability provisions in the contract "directly frustrate" the remedies created by Florida's Nursing Home Resident's Rights Act.

Insurance -- Commercial liability -- Coverage -- Reformation -- Mutual mistake -- Appeal of declaratory judgment determining that coverage existed for a claim filed against insured arising from injuries sustained while consumer was using exercise ball sold by insured -- Declaratory judgment is reversed because trial court's findings of undisputed fact support reformation of parties' insurance policy based on mutual mistake where, although original policy included an exclusion schedule that was inadvertently left blank and insured was unaware that new copies of policy mailed to insured's agent contained corrected exclusion endorsement, insurer and insured agreed that the exercise balls would be excluded from coverage prior to the policy being issued -- Trial court's focus on how insurer failed to notify insured and insured's agent of the clerical error was misplaced because the manner of notification did not change undisputed fact that the corrected exclusion endorsement did not alter the parties' agreement to exclude the exercise balls

FEDERAL INSURANCE COMPANY, Indiana corporation, Appellant, v. DONOVAN INDUSTRIES, INC., a Florida corporation, Appellee. 2nd District.

Insurance Fraud (Durable Medical Equipment): GEICO ALLEGES $477K FRAUD BY MEDICAL EQUIPMENT SUPPLIERS, HEALTH CARE PROVIDERS, Geico v. Grand Med. Supply, 18 No. 21 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices December 5, 2011 Several durable medical equipment suppliers and doctors participated in a scheme to defraud insurers by submitting fraudulent claims for the devices, a federal complaint by insurance giant Geico has alleged in a New York federal court lawsuit. The fraud cost Geico more than $477,000, according to the 12-count complaint filed in the U.S. District Court for the Eastern District of New York.

Insurance -- Homeowners -- Appraisal -- There is no rule or statute allowing for the filing of a petition to confirm an appraisal award -- Trial court erred in granting petition to confirm and entering final judgment pursuant to appraisal award -- Remand with instructions to allow insureds to file complaint alleging viable cause of action for insurer's failure to pay loss for ordinance and law coverage

STATE FARM FLORIDA INSURANCE COMPANY, Appellant, vs. CARLOS TOMAS GONZALEZ AND MARGARITA GONZALEZ, Appellees. 3rd District.

Dissolution of marriage -- Mediation agreement -- Where initial mediation agreement, which was incorporated into final judgment, stated that parties were to share equally in a note receivable if any money was paid pursuant to the note, the only issue pending when parties entered into second mediation agreement was former husband's petition for modification of custody, and the second mediation agreement provided that, in all other respects the previous final judgment shall remain unmodified and in full force and effect, it was error for court to find that under the second agreement former wife was not entitled to a portion of the funds received pursuant to the note -- By changing the disposition of the funds received pursuant to the note, court modified the final judgment contrary to the plain language of the second agreement -- It was also error for court to deny former wife's motion to hold former husband in contempt for failure to pay child support without establishing amount of arrearage

KERRY HARVELL IRVIN, Appellant, v. MARCUS LANE IRVIN, Appellee. 2nd District.

SANCTIONS Kim v. Westmoore Partners, Inc.,(Cal.App. 4 Dist.) Sanctions - Counsel's violations of rules of court in connection with respondent's brief warranted $10,000 sanction The violations of the Rules of Court by counsel for the respondent warranted $10,000 in sanction. Counsel had requested an extension of time to file the brief, but subsequently filed a brief which was nearly identical to a brief which counsel earlier had filed in another action. The Court of Appeal found that the request for the extension of time was thus unreasonable, as the preparation of the brief, which did not address any of the allegedly "complex" issues actually raised on appeal, could not have claimed any significant amount of time. Furthermore, the brief violated the rule of court specifying the required contents of such briefs, as the brief did not contain any thoughtful analysis or relation to the facts of the current case. Rather, a comparison of the two briefs indicated that counsel, when asserting that the appellants had "falsely argued the case," had constructed his argument simply by redacting the facts recited in the earlier brief and reproducing the resulting rhetoric without reference to the current case. The Court found that counsel's conduct warranted $10,000 in sanctions

Trusts -- Accounting -- Error to enter final summary judgment ordering trustee to file accountings for various trusts where there were disputed issues of material fact and where affirmative defenses, including estoppel and waiver and statute of limitations defenses, were not negated -- Trustee waived reliance on New York law with respect to two trusts where trustee did not raise this issue in trial court -- Fact that one of those two trusts was not in record would not prevent summary judgment for an accounting where trustee did not dispute the fact that the trust was in existence and that moving party was a beneficiary -- With respect to two other trusts, each of which had a provision which left to the discretion of the trustee the distribution of an accounting to “beneficiaries eligible within the period covered thereby to receive benefits from the trust which is the subject of said account,” moving party did not conclusively show that he was a beneficiary eligible to receive distributions from these trusts -- Although Florida statute requiring an annual accounting now overrides trust provision to the contrary, movant would still be required to show his eligibility as a beneficiary for those periods prior to enactment of statute

DORIS RICH CORYA, and as Trustee of the Trust Under Will of Paul Rich, dated December 15, 1944, and DORIS RICH CORYA and PAUL J. RICH SANDERS as Trustees of the Trust Under Will of Eleanor M. Rich, dated June 10, 1964, and DORIS RICH CORYA, as Trustee of other trusts presently unknown, Appellants, v. ROY SANDERS and PAUL J. RICH, JR., Appellees. 4th District.

UNTIMELY APPEALS: Nationwide Ins. Co. v. Parmer,(Ind.App.) Appeals - Motion to reconsider does not toll time limit to certify an order for interlocutory appeal. As a motion to reconsider does not toll the time limit to file a notice of appeal, it necessarily follows that a motion to reconsider does not toll the time limit to certify an order for interlocutory appeal. This was decided as a matter of first impression by the Indiana Court of Appeals.

Walton v. State ,(Fla.) Criminal Justice - Porter decision could not form basis for untimely successive motion for collateral relief from death sentence. The Florida Supreme Court has held that the decision of the United States Supreme Court in Porter v. McCollum, holding that it was objectively unreasonable for a murder defendant's trial counsel to have concluded that there was no reasonable probability that the defendant's sentence would have been different had the sentencing judge and jury heard the significant mitigation evidence that trial counsel had neither uncovered nor presented, did not constitute a fundamental change in constitutional law mandating retroactive application in post-conviction proceedings. Rather, Porter addressed a misapplication of Strickland, and involved a mere application and evolutionary refinement and development of the Strickland analysis. Thus, the instant movant was not entitled to a hearing on his second successive, and untimely, motion for collateral relief from his sentence of death. This decision may not yet be released for publication.

U.S. v. All Funds in the Account of Property Futures, Inc. ,(S.D.Fla.) Criminal Justice - Claimants lacked Article III standing to assert claims in civil forfeiture action. The minority-interest members of limited liability companies (LLCs) lacked Article III standing to assert claims in a civil forfeiture action, on the members' own behalf, to the defendant real properties owned by the LLCs, which were allegedly acquired as the result of fraud. The minority-interest members had no ownership interest in the specific real properties that were subject to forfeiture. Rather, they had merely a proportionate equitable interest in the LLCs' general holdings.

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Contracts, torts, medical devices and asparagus crepes with shaved parmesan and rosemary

Bodily Injury: COURT FINDS NO BODILY INJURY IN DEAD-BODIES CASE, Owners Ins. Co. v. Warren Funeral Chapel, 21 No. 41 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage July 22, 2011

A funeral home's insurer owed no coverage against allegations that the home caused emotional distress when it mishandled and improperly disposed of bodies because the discovery occurred months after its policy was canceled, a federal judge in Missouri has ruled. U.S. District Judge Nanette K. Laughrey of the Western District of Missouri noted that Owners Insurance Co.'s policy with Warren Funeral Chapel Inc. covered emotional distress under its definition of bodily injury.  

Child custody -- Parenting plan -- Time-sharing -- Evidence was insufficient to support trial court's finding that annual rotating time-sharing plan was in best interest of school-age child whose parents lived more than 300 miles apart -- Due process -- Moreover, trial court could not order annual, rotating time-sharing plan where neither parent requested such a plan in pleadings or argued for plan at final hearing

Reported at 36 Fla. L. Weekly D1699a

Civil rights -- Search and seizure -- Excessive force -- Male partygoer who was tased during tense incident outside of club prior to his arrest for disorderly conduct and resisting arrest without force and female partygoer who was knocked to the ground and knocked unconscious during incident, filed complaint against local police officers alleging multiple claims, including excessive force, and officers moved for summary judgment based on qualified immunity -- District court did not abuse discretion by considering plaintiffs' statement of material facts submitted with their brief opposing summary judgment, which did not comply with the letter of the local rule -- District court did not abuse discretion in considering depositions filed four days after filing deadline -- District court erred by denying qualified immunity to officer with respect to female plaintiff's excessive force claim because officer's taser report indicated that he applied contact tase to plaintiff, where plaintiff never based her excessive force claim on officer's contact tase, and district court should not have constructed theory of liability on plaintiff's behalf from facts that plaintiff never alleged -- A district court may look at all evidence in record to determine whether issue of material fact exists regarding the plaintiff's asserted causes of actions, but may not act as a plaintiff's lawyer and construct party's theory of liability from facts never alleged, alluded to, or mentioned during the litigation -- Officers, who fired taser probes into male plaintiff's chest and applied contact taser to back of his neck, are not entitled to summary judgment based on qualified immunity where officers' use of taser was excessive and law was sufficiently clear to put officers on notice that their conduct violated plaintiff's Fourth Amendment rights -- Under facts viewed in light most favorable to male plaintiff, officers' use of taser was excessive where crime for which plaintiff was arrested was not serious, plaintiff clearly did not present threat to officer safety or to safety of anyone else, and plaintiff was not resisting arrest or attempting to escape -- Unprovoked force against non-hostile and non-violent suspect who has not disobeyed instructions violates suspect's rights under Fourth Amendment -- Under either of two methods for determining whether reasonable officer would know that his conduct is unconstitutional, defendant-officers should have known that their conduct violated Fourth Amendment rights of plaintiff who was tased even though he committed at most a minor offense, did not resist arrest, did not threaten anyone, and did not disobey any instructions -- Officer, who tackled female plaintiff to ground after observing plaintiff screaming and stepping toward back of officer who was firing his taser at another partygoer, was entitled to qualified immunity where officer could have reasonably believed that plaintiff was about to attack officer from behind

Reported at 23 Fla. L. Weekly Fed. C176a

Police Misconduct (Expert Testimony): EX-L.A. COP CAN TESTIFY FOR CHICAGO POLICE-ASSAULT VICTIM, Obrycka v. City of Chicago, 8 No. 8 Westlaw Journal Expert and Scientific Evidence 1, Westlaw Journal Expert and Scientific Evidence July 20, 2011

An Illinois federal judge has ruled that a former member of the Los Angeles Police Department can testify on behalf of a bartender allegedly beaten by a Chicago officer when she refused to serve him more alcohol. Plaintiff Karolina Obrycka retained Lou Reiter as an expert witness to testify on an alleged "code of silence" within the Chicago's police department.In a July 5 ruling U.S. District Judge Amy St. Eve of the Northern District of Illinois rejected the city's argument otherwise.

Condominiums -- Assessment liens -- Trial court properly entered summary judgment for condominium association in its action to foreclose assessment lien where special assessment was passed in manner required by commercial condominium's bylaws and was for purpose of maintenance and repair of common elements, and there was no factual issue as to the validity of the assessment -- Unit owner's allegation of breach of fiduciary duty by association was not a valid defense to or avoidance of obligation to pay assessment lien -- Trial court properly severed lien foreclosure complaint from breach of fiduciary duty counterclaim, as facts giving rise to claims are not inextricably interwoven

Reported at 36 Fla. L. Weekly D1677b

Contracts -- Sale of hotel -- Directed verdict -- Trial court erred in granting directed verdict for plaintiff seller after plaintiff rested and prior to defendant having an opportunity to present any evidence -- Because defendant was not given any opportunity to call witnesses or to present any evidence regarding claim of fraudulent inducement, defendant was effectively denied due process

Reported at 36 Fla. L. Weekly D1676a

Life Insurance: WELLS FARGO'S 'STOLI' COUNTERSUIT PROCEEDS AGAINST INSURER, Pruco Life Ins. Co. v. Brasner, 21 No. 41 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 22, 2011

Wells Fargo can press a countersuit for negligent misrepresentation against a life insurer that allegedly verified a $10 million "stranger-originated life insurance" policy as valid, a Florida federal judge has ruled. U.S. District Judge James I. Cohn of the Southern District of Florida rejected Pruco Life Insurance Co.'s argument that the "economic loss" rule barred a negligent-misrepresentation claim because Wells Fargo Bank N.A. only alleged economic harm.

Employee Theft: ONGOING THEFTS WORTH $1.5 MILLION NOT 'OCCURRENCE' UNDER POLICY, IFCO Sys. N. Am. v. Am. Home Assurance Co., 21 No. 41 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 22, 2011

An insurer had no duty to cover alleged ongoing thefts of goods totaling $1.5 million by its policyholder's employee as the thefts did not meet the policy's definition of an occurrence, a Maryland federal court judge has ruled. American Home Assurance Co.'s policy with IFCO Systems North America defined an occurrence as an unintentional act, U.S. District Judge William M. Nickerson of the District of Maryland said. He granted AHAC's summary judgment motion, finding the insurer owed no coverage.

Mortgage Investment: MORTGAGE FIRM'S POLICY MIGHT COVER INVESTMENT, COURT FINDS, Certain Underwriters at Lloyd's London v. Cal. Mortgage & Realty, 21 No. 41 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 22, 2011

An insurer may have a duty to defend a mortgage brokerage firm under its errors-and-omissions policy against lawsuits seeking the return of a combined $9 million in investment funds, a California federal judge has ruled. U.S. District Court Judge William Alsup of the Northern District of California said a policy by Certain Underwriters at Lloyd's London might cover California Mortgage & Realty's alleged negligence in remitting funds or servicing investments.

Bad Faith: ATTORNEY'S ADVICE SHIELDS INSURER FROM BAD-FAITH FINDING, Finger v. State Farm, 21 No. 41 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 22, 2011

State Farm did not act in bad faith when it denied coverage of a judgment for slander based on the advice of its attorney, an Alabama federal judge has ruled. U.S. District Judge Kristi K. DuBose of the Southern District of Alabama called the insurer's post-verdict coverage denial "unusual" but concluded its reliance "on an experienced and highly qualified attorney's contradictory but thoroughly analyzed opinion was in good faith."The judge nevertheless ordered State Farm Fire to pay policyholders.

Auto: INSURER CAN'T DENY COVERAGE BASED ON CDL REQUIREMENT, Devese v. Transguard Ins. Co., 21 No. 41 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 22, 2011

The estate of an unlicensed commercial truck driver killed in a collision can move forward with claims for breach of contract and bad faith where the policy's license requirement was overbroad and designed to dodge coverage, Nebraska's highest court has ruled. The state Supreme Court held in a written opinion that the insurer failed to show a causal link between the driver's failure to maintain a commercial driver's license and the accident.

Wrongful death -- Nursing homes -- Arbitration -- Power of attorney -- Nonfinal order compelling arbitration of claims reversed where deceased's power of attorney did not authorize surrogate to consent to arbitration -- The language of the POA supports no conclusion that deceased intended to authorize surrogate to act for deceased in matters related to property rights or potential litigation with health care providers where POA specifically listed powers that related to the direct provision of medical care and identified surrogate as a “health care surrogate,” and the third parties whom POA directed to accept surrogate's actions were all related to the provision of health care -- Particularly persuasive is fact that language of POA is strikingly similar to language in health care surrogate statute -- Reversed and remanded with instructions to deny motion to compel arbitration

Reported at 36 Fla. L. Weekly D1684a

Pain Patch: W.VA. HIGH COURT REVIVES SUIT OVER MYLAN PAIN PATCH OVERDOSE, Mace v. Mylan Pharm., 18 No. 11 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices July 18, 2011

A divided West Virginia Supreme Court of Appeals has restored a product liability suit filed against Mylan Pharmaceuticals by a man who says his wife died from an overdose of fentanyl that leaked from a pain patch. The high court, in a 2-1 decision, said a state circuit court judge erred when he dismissed the suit on forum non conveniens grounds without considering that the limitations period for the action in the other available forum, North Carolina, had expired.

Discovery: HOSPITAL INFECTION RATES NOT PRIVILEGED, ILLINOIS APPEALS COURT RULES, Zangara v. Advocate Christ Med. Ctr., 8 No. 8 Westlaw Journal Expert and Scientific Evidence 3, Westlaw Journal Expert and Scientific Evidence July 20, 2011

A Chicago-area hospital must disclose the number of its patients who contracted the deadly MRSA bacteria because the information is not protected by Illinois' peer-review privilege, a state appellate court has ruled. The 1st District Appellate Court reinstated lawsuits filed by Joseph Zangara and the family of Zigmund Dziamara, determining the plaintiffs had a legitimate reason for initially failing to attach affidavits of merit as required under state law.

Criminal law -- Search and seizure -- Vehicle -- Dog sniff -- Probable cause -- Trial court erred in determining that dog's alert on defendant's vehicle provided probable cause to search and in denying defendant's motion to suppress cocaine discovered in vehicle as a result of the search -- Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where dog's field performance records indicated that dog had conducted seventeen vehicle sniffs and alerted to the presence of drugs fourteen times, but drugs were found after only four of those alerts -- The fact that officer documented and explained some type of narcotics history associated with each vehicle to which dog alerted but in which no drugs were found was relevant to the issue of whether an alert was false or an alert to a residual odor; however, the officer's explanations were not specific enough to establish the existence of residual odors on which dog should have alerted -- Nine of the unverified alerts where officer testified that vehicle had drug history or that someone in each vehicle had used narcotics recently are not considered in calculating dog's field accuracy rate because officer's explanations failed to identify what the drug history entailed, why it ensured that drugs had once been in the vehicle, how long before the stop someone in the vehicle had used narcotics, or how residual of an odor dog could be expected to detect -- Even if final unverified alert where officer testified that he actually smelled marijuana in the vehicle was added to dog's positive alert calculation, dog's accuracy rate is still only thirty-six percent, which is insufficient to establish reliability -- Additionally, the state's failure to set forth the details of the dog's alert on defendant's vehicle makes it impossible to tell if dog alerted on residual odor or whether he alerted on the actual cocaine itself -- Therefore, under a totality of the circumstances analysis, the state failed to present sufficient evidence to establish probable cause to believe that contraband actually would be found in vehicle after dog's alert

Reported at 36 Fla. L. Weekly D1688a

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Health law, insurance coverage, appeals with a sprinkling of gorgonzola

Sixth Circuit expresses concern over health care reform law

A federal appeals court in Cincinnati expressed concern Wednesday over the sweeping health care reform law championed by President Barack Obama, especially the requirement that Americans purchase health insurance in coming years or face financial penalties. 

The case could turn on either a broad reading of congressional power to regulate the health insurance market, or more mundane procedural issues. It is one of 30-some legal challenges nationwide to the health care reform effort, an issue that is certain to ultimately reach the Supreme Court, perhaps by year's end.  More 

1st Circuit: Anti-kickback violations can underpin False Claims Act cases

The National Law Journal

June 2, 2011

The June 1 ruling in U.S. ex rel. Hutcheson v. Blackstone Medical Inc. reversed a March 2010 dismissal of the complaint for failing to identify a materially false or fraudulent claim under the FCA. The 1st Circuit has determined that anti-kickback statute violations can form the basis of a False Claims Act case.   More

 Jovine v. Abbott Laboratories, Inc. ,(S.D.Fla.)

Torts - Assuming shotgun complaint was not dismissed, negligence claim against infant formula manufacturer was adequately alleged.

Assuming consumers' "shotgun" complaint was not dismissed for incorporating by reference all allegations for each subsequent claim, the consumers adequately alleged a plausible class action claim for negligence, under Florida law, against the manufacturer of infant formula products recalled due to contamination with insect parts and larvae. The consumers alleged that the manufacturer owed a duty to consumers to use reasonable care to ensure that the products were not adulterated, contaminated, injurious to health, or otherwise unfit for consumption, that the duty was breached by failing to exercise reasonable care in formulating, manufacturing, marketing, advertising, distributing, and selling the products, and that damages were suffered as direct and proximate result of the breach when consumer's infant digested a defective product and became ill as result.

Approved by the Governor May 26, 2011.

2011 Fla. Sess. Law Serv. Ch. 2011-61 (S.B. 2144) (WEST)

MEDICAID--STANDARDS

Approved by the Governor May 26, 2011.

An act relating to Medicaid; amending s. 400.23, F.S.; revising the minimum staffing requirements for nursing homes; amending s. 408.815, F.S.; requiring that the Agency for Health Care Administration deny an application for a license or license renewal of an applicant, a controlling interest of the applicant, or any entity in which a controlling interest of the applicant was an owner or officer during the occurrence of certain actions; authorizing the agency to consider certain mitigating circumstances; authorizing the agency to extend a license expiration date under certain circumstances; amending s. 409.904, F.S.; repealing the sunset of provisions authorizing the federal waiver for certain persons age 65 and older or who have a disability; repealing the sunset of provisions authorizing a specified medically needy program; eliminating the limit to services placed on the medically needy program for pregnant women and children younger than age 21; amending s. 409.905, F.S.;

FL LEGIS 2011-61

Property: 11TH CIRCUIT: INSURER'S POLICY SAYS POSSESSION IS 9/10 OF THE LAW, Aydin & Co. v. Jewelers Mut. Ins. Co., 21 No. 33 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage May 27, 2011

An insurer owed no coverage when a jeweler lost over $300,000 in high-priced merchandise while traveling by plane because the jewelry was not in his custody as required by the policy, the 11th U.S. Circuit Court of Appeals has ruled. The unanimous panel affirmed that Jewelers Mutual Insurance Co.'s policy with Aydin & Co. explicitly limited the insurer's liability when jewelry left the retailer's Atlanta store.Therefore, Jewelers Mutual did not breach its contract when it denied coverage.

Medical Information: HEALTH NET'S, IBM'S NEGLIGENCE COMPROMISED MEDICAL DATA, SUIT SAYS, Bournas v. Health Net, 21 No. 33 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage May 27, 2011

Health Net Inc. and IBM face a class-action lawsuit seeking $5 million in damages over the loss of computer storage devices that held the medical histories, financial data and Social Security numbers of 2 million people. Alana Bournas' class-action complaint in the U.S. District Court for the Eastern District of California alleges that the insurer and IBM breached their duty of confidentiality and negligently allowed the release of highly personal and confidential information of millions.

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Health law, arugula with roasted tomatoes and garlic over penne pasta

Medicaid Services: SUPREME COURT TO DECIDE IF CALIFORNIA CAN CUT MEDICAID PAYMENTS, Maxwell-Jolly v. Pharmacists Ass'n, 13 No. 15 Westlaw Journal Nursing Home 1, Westlaw Journal Nursing Home January 28, 2011

The U.S. Supreme Court has agreed to review a California health official's claims that the state should be allowed to reduce Medicaid payments to physicians, hospitals and pharmacies because of its current budget crisis. The high court granted the state's petition for review of a 9th U.S. Circuit Court of Appeals ruling that a state-approved reduction in Medicaid payments is preempted by federal Medicaid law.

Abuse & Neglect: FLORIDA SUIT SAYS HOME FAILED TO PREVENT RESIDENT'S FALLS, Cook v. Senior Care Cedar Hills, 13 No. 15 Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home January 28, 2011

An elderly dementia sufferer in Florida suffered numerous falls, infections and insect infestations during her stay at a Jacksonville nursing home, her daughter alleges in a state court lawsuit. Martha Y. Cook claims that Cedar Hills Healthcare Center violated her mother's rights as a nursing home resident when it failed to monitor her, prevent falls, and protect her from infestations of scabies mites and bed bugs.  

Billing Fraud: VIRGINIA FEDERAL JUDGE WON'T DISMISS MEDICARE FRAUD DEFENDANTS, United States v. Americare In Home Nursing, 13 No. 15 Westlaw Journal Nursing Home 3, Westlaw Journal Nursing Home January 28, 2011

A Virginia federal judge has denied a motion by Visiting Nurse Service Network and its executive director to dismiss a suit alleging the company violated the federal Anti-Kickback Statute and False Claims Act by running an illegal patient referral scheme. U.S. District Judge James C. Cacheris of the Eastern District of Virginia also denied a motion to dismiss by a defendant home health care company allegedly involved in the scheme but granted dismissals to a third company and a home health firm.

Billing Fraud: WHISTLE-BLOWER SUIT AGAINST KANSAS HOSPICE PROVIDER SURVIVES, United States v. Hospice Care of Kansas, 13 No. 15 Westlaw Journal Nursing Home 4, Westlaw Journal Nursing Home January 28, 2011

A Kansas federal judge has declined to dismiss a whistle-blower lawsuit alleging Hospice Care of Kansas and parent Voyager Hospicecare instructed staff members to unlawfully document patients' conditions to make them appear eligible to receive Medicare benefits. Judge Carlos Murguia of the U.S. District Court for the District of Kansas rejected the defendant companies' argument that plaintiff Beverly Landis failed to plead her fraud claims with the particularity required by Federal Rule of Civil Procedure.

Coercion: LOUISIANA APPEALS PANEL REJECTS DECEASED MOTHER'S COERCION CLAIMS, Petrie v. Michetti, 13 No. 15 Westlaw Journal Nursing Home 5, Westlaw Journal Nursing Home January 28, 2011

A Louisiana appeals court has rejected the claims of a now-deceased dementia sufferer who said her daughter coerced her into donating property by threatening to put her in a nursing home. Maxine Rearick failed to present clear and convincing evidence that she donated property to her daughter under threat of harm and without real volition, the Court of Appeal's 5th Circuit found.The three-judge panel upheld a trial court's denial of Rearick's request to nullify or revoke the donation.

Employment: SUNRISE FACILITY FIRED WORKER FOR REPORTING NEGLECT, SUIT SAYS, Tobritzhofer v. Sunrise Senior Living, 13 No. 15 Westlaw Journal Nursing Home 6, Westlaw Journal Nursing Home January 28, 2011

Management at a Sunrise Senior Living facility in Minnesota fired a staff member for reporting increased incidents of resident neglect and declining levels of care, a federal lawsuit alleges. Kimberly Tobritzhofer claims that her superiors at Sunrise of Roseville repeatedly told her not to report residents' increased occurrences of falling and concerns about skin care to state health officials or other employees. In a complaint for wrongful discharge filed in the U.S. District Court.

Financial Elder Abuse: CALIFORNIA APPEALS COURT FINDS DISABLED WOMAN'S FAMILY VIOLATED TRUST, McQueen v. Drumgoole, 13 No. 15 Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home January 28, 2011

A California appeals court has upheld a jury's finding that a mentally retarded woman's uncle, sister and attorney violated a trust by selling the family residence without her knowledge and cutting her out of the proceeds. The trial judge properly allowed jurors to consider Ida McQueen's conversion claim and issued correct jury instructions on the standard for financial elder abuse, the 1st District Court of Appeal said.McQueen, 76, suffers from mild mental retardation and is wheelchair-bound.

Health Care Reform: CHRISTIAN GROUP CHALLENGES HEALTH CARE REFORM BILL IN 6TH CIRCUIT, Thomas More Law Ctr. v. Obama, 13 No. 15 Westlaw Journal Nursing Home 8, Westlaw Journal Nursing Home January 28, 2011

A Christian legal advocacy group seeking to derail President Obama's health care reform law has taken its case to the 6th U.S. Circuit Court of Appeals. The Thomas More Law Center is challenging U.S. District Judge George Caram Steeh's ruling that the government legally can require uninsured people to purchase coverage.The judge had denied the group's request for an injunction against a provision in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, that imposes a penalty.

Legislation: WISCONSIN SENATE PASSES LAWSUIT REFORM, PUNITIVE DAMAGES CAP, 13 No. 15 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home January 28, 2011

The Wisconsin Senate has approved legislation that imposes greater restrictions on evidence in tort cases against long-term-care facilities and caps punitive damages in all cases at $200,000. The Republican-authored law is part of a five-bill package introduced by incoming Gov. Scott Walker to promote a "business- and job-friendly legal environment," he told the media Jan. 4. However, state Democrats and advocacy groups for the elderly claim the package's lawsuit reform bill shields nursing homes.

Long-Term-Care Insurance: DEMENTIA SUFFERERS SEEK PENALTIES AGAINST LTC INSURER, Barton v. Bankers Life & Cas. Co., 13 No. 15 Westlaw Journal Nursing Home 10, Westlaw Journal Nursing Home January 28, 2011

A Texas couple, both diagnosed with dementia, have sued their long-term-care insurer over its allegedly wrongful denial of their claims and refusal to comply with requests for policy information. Glen and Barbara Barton claim that Bankers Life & Casualty Co. has declined to reimburse them $7,500 in legal expenses despite the insurer's concession that it should have approved their claims for benefits in 2009 and 2010. They seek reimbursement plus thousands in statutory penalties for the insurer.

Medicaid Services: CUTS IN MEDICAID HOME SERVICES WILL HURT THOUSANDS, LOUISIANA RESIDENTS SAY, Pitts v. Greenstein, 13 No. 15 Westlaw Journal Nursing Home 11, Westlaw Journal Nursing Home January 28, 2011

Four low-income Louisiana residents are seeking class-action status in their bid to stop the state from cutting home-care Medicaid services for nearly 11,000 poor people. Plaintiffs Helen Pitts, 78, Kenneth Roman, 47, Denise Hodges, 53, and Ricki Ainey 30, allege the Louisiana Department of Health and Hospitals plans to slash its program offering long-term, personal care services in the face of a $1.6 million budget deficit. The move is discriminatory because it will result in thousands of Medicaid cuts.

Implantable Defibrillators: 2ND TIME AROUND, GUIDANT GETS OK ON $296 MILLION PLEA DEAL, United States v. Guidant LLC, 17 No. 25 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices January 31, 2011

A federal judge in Minneapolis has approved a $296 million plea agreement between Guidant LLC and the Justice Department, noting that the pact places the company on probation, an element absent in a previously rejected proposal. Last April U.S. District Judge Donovan W. Frank of the District of Minnesota rejected a virtually identical plea deal over the company's concealment of defects in some of its implantable heart defibrillators, saying it lacked a probation element.

Hydro ThermAblator (Federal Preemption): 5TH CIRCUIT RESTORES PART OF BURN VICTIM'S SUIT AGAINST BOSTON SCIENTIFIC, Hughes v. Boston Scientific Corp., 17 No. 25 Westlaw Journal Medical Devices 2, Westlaw Journal Medical Devices January 31, 2011

A federal appeals court has restored a failure-to-warn claim by a woman who says she was severely burned by a device used to stop uterine bleeding, reversing a judge's finding that the action is federally preempted. Jan Hughes can proceed with her claim that Boston Scientific Corp. failed to properly warn her about the Hydro ThermAblator's burn risks, the 5th U.S. Circuit Court of Appeals said, because she based her allegation on the firm's alleged failure to comply with federal regulations.

Prosthetic Hip: LIMITATIONS STATUTE SNUFFS SUIT OVER FLORIDA WOMAN'S FAILED PROSTHESIS, Chapman v. DePuy Orthopaedics, 17 No. 25 Westlaw Journal Medical Devices 3, Westlaw Journal Medical Devices January 31, 2011

Citing an expired statute of limitations, a federal judge in Tampa, Fla., has granted summary judgment for DePuy Orthopaedics in a suit alleging a woman's hip prosthesis failed because it was negligently designed and manufactured. U.S. District Judge Virginia Covington of the Middle District of Florida found that although the plaintiff lives in the state, her suit is governed by Virginia's two-year limitations period for product liability cases because that is where the disputed device was purchased.

Prosthetic Hip (Discovery): ILLINOIS FEDERAL JUDGE KILLS HIP PLAINTIFF'S 'OVERLY BROAD' DISCOVERY REQUEST, Pankey v. Wright Med. Group, 17 No. 25 Westlaw Journal Medical Devices 4, Westlaw Journal Medical Devices January 31, 2011

A federal judge in Urbana, Ill., has denied as "overly broad" a plaintiff's discovery motion in a suit alleging the premature failure of a hip prosthesis system from Wright Medical Group. Rejecting plaintiff Glenn D. Pankey's motion to compel discovery, U.S. Magistrate Judge David G. Bernthal of the Central District of Illinois sided with the medical device maker. Wright had argued that the request for extensive data on all Profemur hip prosthesis products constituted an unauthorized "fishing expedition.”

Surgical Tool: CALIFORNIA APPEALS COURT BACKS DISMISSAL OF SURGICAL TOOL INJURY SUIT, Courtenay v. U.S. Surgical Corp., 17 No. 25 Westlaw Journal Medical Devices 5, Westlaw Journal Medical Devices January 31, 2011

A California appeals court has affirmed dismissal of a failure-to-warn suit against the maker of a gynecological surgical tool by a woman who says she was injured during a procedure to implant a supportive mesh device. Elisabeth Courtenay turned to the 2nd District Court of Appeal after a trial judge granted summary judgment to Tyco Healthcare Group and U.S. Surgical Corp.Her claims related to the use of the IVS Tunneller during a 2004 abdominal operation.  

Pain Pump: BREG SCORES WINS OHIO PAIN PUMP SUIT, Krumpelbeck v. Breg Inc., 17 No. 25 Westlaw Journal Medical Devices 6, Westlaw Journal Medical Devices January 31, 2011

Breg Inc. had no reason to warn an Ohio woman of possible cartilage damage from the use of one of its pain pumps to inject anesthetics into her shoulder after a 2005 operation, a federal judge in Cincinnati has ruled. U.S. District Judge Timothy S. Black of the Southern District of Ohio granted the company's motion for summary judgment, finding no duty to warn at the time the injection took place in March 2005.

Pain Pump: NEGLIGENCE, LIABILITY CLAIMS GO FORWARD IN SOUTH DAKOTA PAIN-PUMP SUIT, Suhn v. Breg Inc., 17 No. 25 Westlaw Journal Medical Devices 7, Westlaw Journal Medical Devices January 31, 2011

A federal judge in Sioux Falls, S.D., will allow negligence and strict liability claims to proceed in a man's lawsuit alleging his shoulder cartilage was destroyed when a Breg Inc. pain pump was used to infuse anesthesia directly into the joint. U.S. District Judge Karen E. Schreier of the District of South Dakota said Marcus Suhn provided enough data for a jury to find the defendant should have known that injecting medication directly into the shoulder joint might cause irreparable cartilage damage.

Panacryl Sutures: MDL JUDGE SENDS SUTURE SUIT BACK TO MISSOURI STATE COURT, Englemen v. Johnson & Johnson, 17 No. 25 Westlaw Journal Medical Devices 8, Westlaw Journal Medical Devices January 31, 2011

The North Carolina federal judge presiding over the consolidated suits on Johnson & Johnson's failed Panacryl sutures has returned an infection case to Missouri state court, rejecting J&J's claim that a Missouri medical products supplier was fraudulently joined to defeat federal court jurisdiction. U.S. District Judge Terrence W. Boyle of the Eastern District of North Carolina rejected defense arguments that remand should be denied.

Pain Patch: DESIGN, MANUFACTURING DEFECT CLAIMS STAND IN OHIO PAIN-PATCH DEATH SUIT, Miller v. Alza Corp., 17 No. 25 Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices January 31, 2011

Alza Corp. must face design and manufacturing defect allegations by the survivors of an Ohio man who died when a pain patch he was wearing allegedly leaked a fatal overdose of fentanyl. U.S. District Judge Timothy S. Black of the Southern District of Ohio denied Alza's motion to dismiss the claims, holding that circumstantial evidence surrounding Cornell Phillips' 2006 death created a genuine issue of fact on whether the Alza patch Phillips was using when he died had a leak. 

Lasik Surgery: WOMAN NEEDS CORNEA TRANSPLANT AFTER FAILED LASER SURGERIES, SUIT SAYS, Linegar v. Lobanoff, 17 No. 25 Westlaw Journal Medical Devices 11, Westlaw Journal Medical Devices January 31, 2011

Three failed laser eye surgery procedures in less than one year have left a woman with an irreversibly scarred cornea, according to a lawsuit filed in Minnesota federal court. Layla Linegar says she now needs a cornea transplant in her left eye. Ophthalmologist Mark Lobanoff assured Linegar she was a suitable candidate for Lasik surgery after examining her in December 2008, according to the complaint filed in the U.S. District Court for the District of Minnesota.

 17 No. 25 Westlaw Journal Medical Devices 12, Westlaw Journal Medical Devices January 31, 2011

FDA panel weighs tougher rules for defibrillators The Food and Drug Administration is considering enacting tougher restrictions to force the makers of automatic external defibrillators to submit added data before offering the devices for sale. The FDA, which notes that 300,000 Americans collapse from sudden cardiac arrests annually, says that since 2006, AED makers have issued 68 product recalls, affecting hundreds of thousands devices. The agency says regulatory review is needed.

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