Category Archives: Healthcare Litigation

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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

Health Information Security and the Threat of a Class Action

Stanford University Hospital recently reported that its patients’ unencrypted protected health information (PHI) was compromised when a laptop was stolen from the hospital. This should have healthcare organizations evaluating and enhancing efforts to secure patient information. These incidents can form the basis for class action lawsuits, even though the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not … Continue Reading

Silence is Golden for Dentist Suspended Without Pay

Healthcare practices often employ doctors under formal employment agreements that set forth the parties’ respective rights and obligations. As illustrated by a recent case involving a Florida dentist, such employment agreements not only define what the practice can do, but also implicitly define what the practice cannot do under the agreement.

Nancy Havens is a dentist who had a five … Continue Reading

Florida Legislature Limits Scope of Hasan v. Garvar

Just six months after the Florida Supreme Court decided Hasan v. Garvar, 2012 WL 6619334 (Fla. 2012), Governor Rick Scott signed into law SB 1792. The new law partially reverses the holding in Hasan that Florida’s patient confidentiality statute, §456.057, Florida Statutes, bars ex-parte communication between a non-defendant subsequent treating physician and the physician’s attorney. Hasan also prohibited … Continue Reading

Tuomey Standing Firm in Face of “Stark” Penalties

The next round in United States ex. rel. Drakeford v. Tuomey Healthcare System, Inc., is underway and Tuomey Healthcare keeps fighting.  As previously reported, on May 8, 2013, a federal jury found that Tuomey Healthcare System, a non-profit system in South Carolina, violated the Stark law and the False Claims Act in connection with its compensation structure for … Continue Reading

Healthcare Providers (and Business Associates) Beware: Plaintiffs Using Novel Theories When Suing for Breaches of Protected Health Information

Healthcare providers, other covered entities under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and now HIPAA business associates, should be aware that patients who believe that their protected health information (PHI) has been improperly accessed are suing those required to protect the privacy and security of PHI based on some novel legal theories. HIPAA does not provide … Continue Reading

Supreme Court to Decide Pharmaceutical “Pay for Delay” Case

The United States Supreme Court is set to decide whether a patent holder can pay to keep a challenger out of the market, or whether doing so violates antitrust laws.

Drug manufacturers are granted patents on their products for 20 years, giving them an exclusive right to manufacture and market the patented drug.  In order to bring a generic version … Continue Reading

11th Circuit Issues Cautionary Opinion for Transactional Lawyers

The recent case of St. Joseph Hospital, Augusta, Georgia, Inc. v. Health Management Associates, Inc., Case No. 11-13069 (decided January 24, 2013), is a warning for transactional lawyers to be careful how they describe a transaction in pre-closing filings with government agencies. St. Joseph Hospital (now known as Trinity Hospital of Augusta) sued HMA for breach of contract and … Continue Reading

Court Determines Whether Marketing Rep Was Really a Bona Fide Employee

In January, a Federal District Court in Oklahoma issued a ruling in favor of a former marketing representative of a medical equipment distributor.  The Court determined that Gary Weaver was, in fact, engaged on an independent contractor basis, not as an employee, and therefore his employment agreement with Joint Technology, Inc. was an unenforceable illegal contract under the Federal Anti-Kickback

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Florida Physician to Pay $26.1 Million to Settle False Claims Allegations

On February 11, 2013, the U.S. Department of Justice (DOJ) announced the largest settlement ever reached with an individual under the False Claims Act (FCA) in the United States District Court for the Middle District of Florida. The settlement is also one of the largest with an individual under the FCA in U.S. history. According the Notice of Settlement filed … Continue Reading