by Mark Bauman | May 22, 2023 | Health Care Law, Legal News
In an opinion authored on November 14, 2012, a three-judge panel unanimously found that the statute banning wrongful birth and wrongful life actions in Pennsylvania (42 Pa.C.S.A. §8305) was enacted unconstitutionally.
Generally, wrongful birth is a claim made by the parents of a child born with birth defects, wherein the parents allege that the healthcare provider failed to warn them about the defects. Wrongful life, on the other hand, is a claim made by the child for failing to prevent the birth.
According to the panel, section 8305 violated the “single-subject rule” contained in Article III, Section 3 of the Pennsylvania Constitution, which requires that all provisions in a bill assist in carrying out a bill’s main objective or are otherwise germane to the bill’s subject. Section 8305 was signed into law as Act 47 of 1988. The panel examined the final version of that bill and concluded that the majority of the provisions related to post-trial matters in criminal cases. The panel therefore found that all provisions contained in Act 47 not related to post-trial matters in criminal cases, including section 8305, violated the “single-subject rule” and was enacted unconstitutionally.
by Mark Bauman | May 21, 2023 | Legal News, Medical Malpractice
The Superior Court recently remanded a medical malpractice case back to the Clarion County Court of Common Pleas after ruling that the jury erroneously found a clerk’s admitted filing error was not negligent.
In writing on behalf of the unanimous three-judge panel, Judge Anne E. Lazurus explained that, because the file clerk’s employers admitted that she misfiled an ultrasound report and that mistake constituted a breach of the standard of care, the defense verdict bore no rational relationship to the evidence.
The events underlying the original action began when the minor-plaintiff’s mother presented for a diagnostic ultrasound during her third trimester of pregnancy. The ultrasound showed a large cyst on the fetus’ right kidney. Before the report made its way to the defendant obstetricians’ office, the mother went into labor and delivered a baby boy. Once the ultrasound report arrived at the office, a file clerk placed it in the wrong pile of papers.
About ten days later, the parents brought their baby to the hospital because the baby was lethargic and vomiting. An abdominal ultrasound revealed the kidney cyst, and he was transferred to the Children’s Hospital of Pittsburgh for an emergency surgery to correct an obstructed urethra. The parents initiated a medical malpractice suit against the radiologist, the hospital, and the obstetricians and their practice. Amongst their several charges of negligence and vicarious liability, the plaintiffs contended that the obstetricians failed to maintain proper procedures for obtaining radiology reports. The jury found in favor of the obstetricians. The plaintiffs appealed.
In the opinion, Judge Lazurus agreed with the plaintiffs that the obstetricians’ admission that their staff member was negligent required that the defense decision be set aside. During their depositions and cross-examination, the physicians testified that the misplaced ultrasound report delayed their timely review of the results and constituted a breach in the standard of care. Even without an expert to opine as to the communication policies in place at the obstetricians’ practice, Judge Lazurus held that the facts mandated a finding of negligence. In doing so, she cited two Superior Court cases that found that experts are not needed to prove negligence when lack of skill or care is obvious to laypeople. As a result, the Court ordered that only the obstetrician defendants and their practice should be brought before a jury again to determine causation, liability and damages.
by Mark Bauman | May 21, 2023 | Health Care Law, Legal News
On October 23, 2012, the U.S. Department of Health and Human Services, Office of Inspector General (OIG), issued a favorable Advisory Opinion (Opinion 12-15) regarding the payment of per diem fees by hospitals to physicians providing on-call coverage to unassigned patients who presented to the hospital’s emergency department. In its Opinion, the OIG advised that under the federal Anti-Kickback Statute, neither civil monetary penalties nor administrative sanctions would be imposed on the parties involved with the arrangement at issue.
Specifically, the arrangement at issue involved a charitable, tax-exempt hospital which operated its own emergency department on a 24/7 basis. As to those patients treated in the ED, approximately 19% were treated without compensation given to the hospital, while services rendered to the remaining 81% were reimbursed through some form of insurance, including federal health care programs. The ED was staffed by 130 specialist physicians who pursuant to a written agreement, provided unrestricted call coverage within the hospital. The agreement required the physicians to respond within thirty minutes of a call, regardless of whether they were on-site or elsewhere. In addition, the physicians were required to provide appropriate follow up care and other services in their office practices for any patients who they themselves admitted.
As payment for the physicians’ on-call services, the hospital created a per diem fee system pursuant to an analysis of various factors related to the physicians’ respective call burdens. These factors included the number of days per month the physicians would likely be called, the number of patients per call day they were likely to see, and the likely number of patients requiring inpatient and follow up care. Based on these factors, a total call coverage payment would be allocated and then divided by 365 to determine the per diem fee paid by the hospital to each individual physician.
The federal Anti-Kickback statute makes it a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of services which are reimbursable by a federal health care program, such as Medicare or Medicaid. That said, there are several provisions under the statute which protect arrangements that fit within certain parameters, commonly referred to as “safe harbors.” Notably, the safe harbor pertinent to the arrangement at issue was identified by the OIG as one encompassing “personal services and management contracts.”
In deeming the arrangement at issue to have a “low risk” of fraud and abuse, the OIG took into account several factors. For example, the hospital had certified that its total call coverage payment allotment had been reviewed by an independent consultant, who in turn had certified that the coverage was commercially reasonable, consistent with the applicable fair market value, and independent of volume and/or value of referrals. The hospital had also certified that the physicians’ per diem fees were applied uniformly and were not dependent or based on the referral patterns of individual physicians. Noting the validity of the payments themselves, the OIG also determined that every year, the payments were calculated and allocated in advance, and were ultimately distributed independent of individual referral patterns. Finally, with regard to the services provided by the physicians, the OIG determined that such services were “actual and necessary,” and that the majority of them were paid for solely by the per diem payment allocated by the hospital.
Its opinion notwithstanding, the OIG noted several qualifications to its ruling, advising that its opinion was limited in scope to the specific arrangement at issue, could not be relied upon by any other individual entity, and was limited solely to the federal Anti-Kickback statute (as opposed to other state or federal laws).
by Mark Bauman | May 20, 2023 | Legal News, Medical Malpractice
In an opinion issued on November 12, 2013, a three-judge panel for the Pennsylvania Superior Court held that repeated references to a patient’s consent to the surgeries at issue in a medical malpractice trial were both irrelevant and unduly prejudicial. Given the extent of these violations, the Court held that a new trial was appropriate.
The underlying case of Brady v. Urbas, M.D., et al. involved a plaintiff who brought suit against her podiatrist alleging injuries related to several surgeries performed on her by her podiatrist. The complaint set forth claims sounding in negligence and loss of consortium, the latter of which was brought on behalf of her husband.
Prior to the trial, a motion in limine was filed on behalf of the plaintiff, seeking to preclude all evidence related to the plaintiff’s consent regarding the risks of the procedures at issue. In the motion, counsel for the plaintiff argued that the issue of informed consent was not a defense to negligence and was irrelevant to the issue of whether the conduct of the defendant breached the standard of care. Moreover, counsel asserted that evidence of consent would confuse or mislead the jury, thereby resulting in unfair prejudice. The trial court denied the motion and throughout the ensuing trial, numerous references were made to the plaintiff’s consent to the risks associated with the procedures at issue, including a copy of the consent form which was sent back with the jury during deliberation. A verdict was subsequently returned in favor of the defendant. Counsel for the plaintiff then filed post trial motions for a new trial, which were denied.
Thereafter, an appeal was filed with the Superior Court on behalf of the plaintiff, alleging that the trial court had abused its discretion by allowing evidence of the consent-related material. Noting that the claim at issue was one sounding in medical negligence, and taking into account the elements required to prove this claim, the Superior Court held that evidence of informed consent had no relevance in a claim for medical negligence. Even if the evidence did hold some marginal relevance, the Court noted that such evidence could have deceived the jury into believing that the plaintiff’s injuries “simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the physician’s] negligence caused the risks to occur.” Therefore, it was the opinion of the Court that the plaintiff’s knowledge of the risks associated with her surgeries, along with her consent to the same, were impermissible, and that the case was to be remanded for a new trial.
by Mark Bauman | May 20, 2023 | Health Care Law, Legal News
In Tristani v. Richman, the United States Court of Appeals for the Third Circuit held that Medicaid liens on judgments or settlements limited to medical costs are not prohibited by the anti-lien and anti-recovery provisions of the Social Security Act, 42 U.S.C. § 1396p(a)-(b).
In Tristani, the Pennsylvania Department of Public Welfare (the DPW) paid medical benefits on behalf of three individuals who suffered injuries allegedly caused by the negligence of others. The three individuals filed separate lawsuits against the ostensibly negligent parties, seeking compensatory damages for the injuries they sustained. After the plaintiffs settled their lawsuits with the parties allegedly responsible for their injuries, the DPW asserted liens against each of the plaintiffs’ settlements for the amount of medical expenses paid on each respective plaintiffs’ behalf, less a proportionate share of the plaintiffs’ costs and attorneys fees. The plaintiffs then commenced a putative class action lawsuit against the DPW and the agency’s current and former secretaries in the United States District Court for the Western District of Pennsylvania seeking a determination of whether the DPW had authority to assert such liens against Medicaid beneficiaries.
Two years after initiating their lawsuit against the DPW, the plaintiffs filed a motion for summary judgment in which they asked the district court to declare that: (1) the Commonwealth’s practice of asserting Medicare liens is invalid; (2) the DPW’s ability to recover medical payments made by managed care organizations is limited to capitation payments made by the State; and (3) Pennsylvania’s current method of determining what portion of a settlement constitutes medical costs violates Supreme Court precedent. The district court denied the DPW’s motion after determining that federal law prohibited the DPW from asserting liens against third-party recoveries obtained by Medicaid beneficiaries. However, the district court further held that Pennsylvania’s method of apportioning settlements between medical costs and other portions of the recovery did not violate federal law. The parties then filed cross-appeals to the United States Court of Appeals for the Third Circuit.
On appeal, the Third Circuit began by noting that the Social Security Act (the Act) requires states, as a condition to receiving Medicaid assistance, to oblige Medicaid recipients to assign to the State any rights they may possess to recover medical costs from a third party. The Third Circuit further observed that the Act requires states to seek reimbursement for medical assistance payments made to Medicaid recipients whenever a state determines that a third party is legally liable to pay for a recipient’s medical care. The Third Circuit noted that the Act does not set forth a method by which states must seek reimbursement of medical assistance payments they have made.
The Third Circuit then remarked that the foregoing provisions of the Act conflict with other sections of the Act which prohibit states from imposing liens against the property of Medicaid beneficiaries or recovering any medical assistance properly paid on an individual’s behalf. The Court concluded that the plain language of these conflicting provisions could not be reconciled.
Nevertheless, the Third Circuit determined that the conflicting language in the Act was not fatal to the DPW’s position. Rather, the court followed the well-settled tenet that, when interpreting a statute, a court should not look only at a particular clause in which general words are used, but rather, should examine provisions in the context of the entire statute, and the objects and policy of the law, and construe the statute in a manner that will execute the legislature’s will. The Third Circuit then concluded that, upon consideration of the Act as a whole, including its text, structure, purpose and legislative history, the DPW’s practice of asserting liens against the portion of a Medicaid recipient’s recovery that relates to medical costs must be viewed as an exception to the anti-lien and anti recovery provisions of the Act.
In reaching this conclusion, the Third Circuit stressed that the anti-lien and anti-recovery provisions of the Act significantly predate the reimbursement and forced assignment provisions. The court further noted that the two sets of provisions were enacted to achieve different goals. Specifically, the anti-lien and anti-recovery provisions were created to ensure that Medicaid beneficiaries were not required to directly bear the costs of their medical care. The reimbursement and forced assignment provisions, on the other hand, were enacted to allow states to recoup their medical assistance payments in circumstances where a third party is responsible for a Medicaid recipient’s injuries. According to the court, the only way to effectuate both goals underlying these conflicting provisions is to view the reimbursement and forced assignment provisions of the Act as exceptions to the anti-lien and anti-recovery provisions.
Moreover, the Third Circuit determined that the legislative history of the Act supports the notion that Medicaid beneficiaries are not entitled to retain money paid to them by liable third parties to compensate the beneficiaries for their medical costs. The court reached this conclusion after observing that the anti-lien and anti-recovery provisions were inserted into the Act to protect Medicaid recipients and their spouses from the loss of their property, usually their home, during their lifetime. The court then declared that “Congress’s concern for protecting a Medicaid beneficiary’s personal assets – not her interest in recovering medical costs paid on her behalf – clearly animated the enactment of the anti-lien and anti-recovery provisions.”
The legislative history of the Act’s reimbursement and forced assignment provisions, on the other hand, demonstrates that Congress intended to ensure that states recovered medical assistance payments made to Medicaid recipients whenever third parties are found liable for the recipient’s medical expenses despite the apparent proscription against seeking recovery of such payments. According to the court, “{i} defies common sense to conclude that Congress intended to protect the rights of Medicaid beneficiaries to recover medical costs that they never paid in the first place.” Rather, the court maintained that the reimbursement and forced assignment provisions were meant to limit the financial burden of Medicaid on the states and to ensure that Medicaid beneficiaries did not receive a windfall by recovering medical costs they never paid. Thus, the court concluded that “the forced assignment and reimbursement provisions are best viewed as creating an implied exception to the anti-lien and anti-recovery provisions of the Social Security Act.” The court then held that liens on settlements or judgments that are limited to medical costs are not prohibited by the anti-lien and anti-recovery provisions of the Act.
Finally, the court determined that Pennsylvania’s current statutory scheme, which permits Medicaid recipients to appeal from the statutory default rule of allocation for tort recoveries, is a permissible default apportionment method under federal law.
by Mark Bauman | May 19, 2023 | Legal News, Medical Malpractice
On the morning of October 23, 2013, Senate Bill 379, also known as the “Benevolent Gesture” Bill, was signed into law by Pennsylvania Governor Tom Corbett, after unanimous approval in both the State Senate and House of Representatives.
The Benevolent Gesture Law prevents physicians’ empathetic gestures from being used as evidence in medical malpractice lawsuits. Notably, it does not prevent the use of any statements by physicians indicating negligence or fault.
In addition to gestures directed toward patients, the Benevolent Gesture Law excludes from evidence any gestures made to a patient’s representative (such as a legal guardian, attorney, or power of attorney), as well as those directed toward the relative of a patient. According to the Law, a patient’s “relative” includes his or her spouse, parent, stepparent, grandparent, child, stepchild, grandchild, brother, sister, half-brother or half-sister, spouse’s parent, or any other person with a “family-type” relationship with a patient.
