Category Archives: Healthcare Litigation

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Has the DOJ Signaled a More Critical Approach to FCA Cases?

Defendants have faced an ever increasing number of qui tam actions, yet the government has historically declined to seek dismissal of those actions where it declined to intervene. On January 10, 2018, the Director of the DOJ Civil Division Commercial Litigation Branch’s Fraud Section issued a memorandum to all DOJ attorneys, including AUSAs, advising them that when declining to intervene … Continue Reading

Florida Federal Court: Escobar Requires Reversal of $348 Million False Claims Act Jury Verdict

The United States District Court for the Middle District of Florida vacated a large jury verdict in a False Claims Act case against the owners and operators of nursing homes because the evidence did not satisfy the materiality standards articulated in the U.S Supreme Court’s 2016 opinion in Universal Health Services v. Escobar.

The court’s thorough and well-written opinion … Continue Reading

AHCA Sees the Light on Nursing Home Generator Rule, Unplugging Challenge

After Hurricane Irma made landfall in Florida, a nursing home in South Florida lost power, and several residents of that nursing home died allegedly as the result of increased temperatures caused by the loss of air conditioning. In the immediate aftermath of this tragic accident, the Agency for Health Care Administration (AHCA) (for nursing homes) and the Department of Elder … Continue Reading

Florida Supreme Court: Referral Sources Can Be Protected By A Non-Compete

Big news for home health agencies and others whose business comes from referral sources: the Florida Supreme Court just held that referral sources are the kind of protectable business interest that will support a non-compete agreement. Home health agencies, like other health care businesses, routinely use non-compete agreements to prevent marketing employees from leaving and going to work for direct … Continue Reading

“Sometimes Wrong, Never in Doubt” – A New Perspective?

Two recent studies of medical malpractice claims highlight how patient complaints may identify those surgeons at greater risk for complications, a significant decrease in paid medical malpractice claims since 1992, and the need for greater understanding of the causes of differences in claims experience across medical specialties.… Continue Reading

When a Discount May be a Kickback

Healthcare providers of all kinds, as well as medical equipment suppliers, have traditionally relied upon discounts as a legitimate means of attracting patients and commercial clients without running afoul of the federal anti-kickback statute (AKS). Congress specifically created the discount “safe harbor” to the AKS years ago based on its policy of encouraging discounts that are properly disclosed as a … Continue Reading

Former Home Health Agency Owner Sentenced to 20 Years for $57MM Medicare Fraud

The US Department of Justice announced that Khaled Elbeblaswy, the former owner and manager three Miami-area home health agencies, was sentenced to 20 years in prison and ordered to pay $36.4 million in restitution for his role in a $57 million Medicare fraud scheme.… Continue Reading

11th Circuit Awards Humana Double Damages Under Medicare Secondary Payer Act

Humana Medical Plan, Inc. v. Western Heritage Insurance Co., case number 15-11436.

Liability insurers beware, as the 11th Circuit held that Medicare Advantage Organizations (MAO) are entitled to the same rights Medicare itself would have in actions against primary payers for reimbursement of conditional healthcare treatment costs. … Continue Reading

Federal Court finds “Systemic Failure” in Processing of Administrative Appeals for Medicare Reimbursement Claims

A win for efficiency: The AHA suit may force shorter adjudication times for Medicare administrative appeals. In 2014, the American Hospital Association (AHA), along with three hospital systems, filed suit against the U.S. Department of Health and Human services, alleging that the lengthy adjudication time for administrative appeals of Medicare claim denials caused severe economic harm.  See, American Hospital Continue Reading

Identifying Overpayments Under the ACA’s 60-Day Rule Creates Additional Uncertainty in Determining False Claims Act Liability

Under the Affordable Care Act (ACA), healthcare providers that receive an overpayment from Medicare or Medicaid are required to report and return the overpayment to the government within 60 days after the date on which the overpayment was identified (commonly referred to as the “60-day rule”). An overpayment retained after 60 days constitutes an “obligation” for purposes of potential False … Continue Reading

Culture of Safety Wins: Federal Patient Safety Law Preempts Amendment 7

Florida’s First District Court of Appeal issued its opinion in the highly watched case of Southern Baptist Hospital of Florida, Inc. v. Charles et al. The First District Court ruled that the federal Patient Safety and Quality Improvement Act of 2005 (PSQIA):

  • Expressly preempts any broad discovery rights afforded under Florida’s Amendment 7 for documents meeting the definition of Patient
Continue Reading

Can We Talk? Florida Court Rejects Latest Challenge to Med Mal Presuit Authorization Law

In the latest challenge to a Florida law designed to promote early settlement of meritorious medical malpractice claims, the Florida First District Court of Appeal recently rejected a plaintiff’s arguments that 2013 amendments to the law violated the Florida Constitution. See Weaver v. Myers, Case No. 1D14-3178 (Fla. 1st DCA July 21, 2015). The court also summarily rejected the … Continue Reading

Religious Freedom and the Affordable Care Act

The fascinating interplay that weaves between the First and Fifth Amendments to the U.S. Constitution, the Religious Freedom Restoration Act (RFRA) and the Patient Protection and Affordable Care Act (ACA) continues to march on in various jurisdictions around the country, with two recent examples being the United States Supreme Court’s grant of certiorari and remand of a Seventh Circuit case, … Continue Reading

Physicians and Photography Don’t Mix

A gynecologist who secretly photographed and videotaped women’s bodies in the examining room will cost one of the world’s leading medical institutions $190 million.  In a damaging blow to its reputation, Johns Hopkins Hospital has agreed to a settlement with more than 8,000 patients of Dr. Nikita Levy, who wore a pen-like camera around his neck to secretly record videos … Continue Reading

Coming Fall 2014: HHS Launches Permanent Audit Program

Beginning in the Fall of 2014, a substantial number of covered entities and business associates will receive a notification and data request from the Health and Human Services’ (HHS) Office for Civil Rights (OCR).  According to Rachel Seeger, an OCR spokeswoman, “we hope to audit 350 covered entities and 50 business associates in this first go-around…Selected entities will receive notification … Continue Reading

Apologizing for Medical Injuries…Is it Protected?

Under Florida law a person may make an apology to someone injured in an “accident” or to their family without the apology being admissible in court. Thirty-eight other states have similar laws which are generally referred to as “apology laws.” Studies suggest that apologizing may reduce the risk of a healthcare provider being sued, and there is some evidence to … Continue Reading

Hospitals & Medical Staff Take Notice: HCQIA Immunity is Not Given, it’s Earned.

The Healthcare Quality Improvement Act of 1986 (“HCQIA”) is a federal law enacted to establish a national tracking system of healthcare practitioners with a history of medical malpractice payments or adverse actions. A significant provision of the law provides immunity from civil money damages for those who participate in hospital peer review process, including members of the medical staff.  In … Continue Reading

Audit Log Discovery as a Feature of the Electronic Medical Record

The increased use of electronic medical records (“EMR”) is changing not only the way physicians practice medicine but also the way discovery is conducted in medical malpractice lawsuits.  Plaintiffs’ attorneys seek to discover not only the contents of the medical records created by defendant healthcare providers, but also seek audit logs and access reports which are related to the EMR.… Continue Reading

Florida’s New Med-Mal Law is Pre-empted by HIPAA and is Voided by Federal Judge

A new part of Florida’s medical malpractice law has been voided by a federal judge on the grounds that it is pre-empted by HIPAA. The law, passed during the 2013 legislative session and effective only on July 1 2013, requires, as a pre-condition to filing a malpractice claim, an aggrieved patient to sign an authorization that allows the potential defendant … Continue Reading

U.S. Supreme Court tells Hospitals to Say: “Sorry Officer, I need a warrant to draw that patient’s blood.”

On April 17, 2013, the U.S. Supreme Court in Missouri v. McNeely ruled that in drunk-driving investigations where Law Enforcement Officers (“LEOs”) can reasonably obtain a warrant before a blood sample can be drawn, the Fourth Amendment mandates they do so.

A.  The Fourth Amendment Protects Against Unreasonable Searches and Seizures

The Fourth Amendment to the U.S. Constitution states it … Continue Reading

Attention Physicians: Your Unsinkable Arbitration Agreement is About to Hit a Glacier

On June 20, 2013, the Florida Supreme Court held in Franks v. Bowers that a medical practice’s custom pre-surgery binding arbitration agreement (the “Agreement“) was unenforceable because it violated key public policy objectives of Florida’s Arbitration Code as well as Florida’s Medical Malpractice Act.

A. What went wrong?

In short, the Agreement was too one-sided. It sought to … Continue Reading

Supreme Court Rules Pharmaceutical “Pay For Delay” Agreements Are Subject to Anti-Trust Review

The Supreme Court struck a blow for consumers when it ruled the Federal Trade Commission may file suit to prevent pharmaceutical companies from agreeing to pay generic drug manufacturers to keep generic drugs off the market for a specified period of time. Federal Trade Commission v. Actavis, Inc. (June 17, 2013).

The Court ruled that “pay for delay arrangements” … Continue Reading

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