Month Day, Year

Case Law Update 2012John West, JD, MHA, DFASHRM, CPHRMSenior Healthcare ConsultantGlobal Loss Prevention

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Objectives

�At the conclusion of this presentation, the participant will be able to discuss updates in the:

• law of medical malpractice

• field of mental health

• law of emergency medicine

• law of informed consent

Medical Malpractice

Marmet Health Care Center, Inc. v. Brown Nos. 11-391 and 112-394 (U.S. 02/21/12)

�Suits were brought by three residents of long term care facilities in West Virginia• All three had signed pre-injury agreements to arbitrate any disputes arising out of care

�Suits were ultimately appealed to the Supreme Court of West Virginia, which ruled that pre-injury arbitration agreements were per se invalid and unenforceable• Cases were appealed to the Supreme Court of the United States (SCOTUS)

Marmet Health Care Center, Inc. v. BrownNos. 11-391 and 112-394 (U.S. 02/21/12)

�SCOTUS ruled that pre-injury arbitration agreements can only be rendered invalid for the same reasons that state law would render other, similar agreements invalid• The Court noted that there is a strong support forarbitration in the Federal Arbitration Act, 9 U.S.C. §2

�SCOTUS reversed the decision of the Supreme Court of West Virginia

�Risk consideration: Arbitration agreements can be a useful tool, but they need to be clear and obvious to the patients or their family

Dept. of Financial and Professional Regulation v. Walgreen CompanyNo. 10-MR-1760 (Ct. App. Ill. 05/29/12)

�Petitioner (DFPR) sought disclosure by subpoena of incident reports that Walgreen had compiled on three pharmacists who had made medication errors

�Walgreen objected to the subpoena and refused to disclose the incident reports on the grounds that they were protected patient safety reports

�DFPR sought to compel production

�Trial court granted Walgreen’s motion to dismiss

Dept. of Financial and Professional Regulation v. Walgreen CompanyNo. 10-MR-1760 (Ct. App. Ill. 05/29/12)

�Walgreen had submitted the reports to the Patient Safety Research Fund, a federally qualified Patient Safety Organization

�The Court of Appeals held that the Patient Safety and Quality Improvement Act of 2005 protected the reports from production

�Risk consideration: Patient safety reports can be important parts of a patient safety process and this case appears to give them the protection they need

Estate of Kundert v. Illinois Valley Community HospitalNo. 3-11-0007 (Ct. App. Ill. 01/10/12)

�Kameryn Kundert was six weeks old when he developed a fever and was fussy• His mother placed a call to Illinois Valley’s emergency department (ED) and spoke with a representative (identity unknown)

• She was told to give him Tylenol and see the pediatrician in the morning

�When she saw the pediatrician in the morning, he arranged for transport by ambulance to the hospital• Kameryn died two weeks later of sepsis

Estate of Kundert v. Illinois Valley Community HospitalNo. 3-11-0007 (Ct. App. Ill. 01/10/12)

�Suit was brought against Illinois Valley for the telephone advice that Kameryn’s mother was given• The trial court dismissed the action

�The Court of Appeals held that this was a simple request for advice and that, since Kameryn was not examined, no provider/patient relationship arose• The Court affirmed the dismissal of the action

�Risk consideration: Health care providers need to be careful regarding telephone advice, because adverse events can easily occur in the absence of an examination of the patient

Spangler v. BechtelNo. 49S05-1012-CV-703 (Ind. 12/13/11)

�Ms. Spangler was in labor and Nurse Midwife Bechtel ruptured her membranes• Apparently, the umbilical cord prolapsed and was later found to have a large thrombus

�Fetal monitor showed no distress, but was apparently monitoring the maternal heartbeat not the infant’s heartbeat

�Preparations were made for an emergency C-section, but the baby was delivered, stillborn, before the surgery could be performed

Spangler v. BechtelNo. 49S05-1012-CV-703 (Ind. 12/13/11)

�Suit was brought for wrongful death and negligent infliction of emotional distress• The trial court dismissed the action and the court of appeals affirmed

�The Supreme Court of Indiana reversed the dismissal of the emotional distress claim and sent the case back for further proceedings• More and more states are allowing claims for the wrongful death of a fetus

�Risk consideration: Care must be taken to ensure that the two OB patients are appropriately monitored during and after any intervention

Fernandez v. Moskowitz85 A.D.3d 566; 925 N.Y.S.2d 476 (N.Y. Supreme Ct., App. Div. 2011)

�Marquez Fernandez’ mother suffered a prolapsed cord while she was in labor and an emergency C-section was performed

�Marquez:• Cried normally at birth, had normal Apgar scores and had normal cord blood gases

• Had two MRIs of his brain in the first three years of life, both of which were normal

�He was diagnosed with Pervasive Developmental Disorder, which is consistent with mild to moderate autism, when he was two years old

Fernandez v. Moskowitz85 A.D.3d 566; 925 N.Y.S.2d 476 (N.Y. Supreme Ct., App. Div. 2011)

�Suit was brought for medical malpractice• The trial court denied a defense motion for summary judgment

�The Court of Appeals reviewed all of the evidence, including the depositions of experts, and ruled that there was no evidence of a hypoxic brain injury at birth• The court reversed the judgment of the trial court

�Risk consideration: Good documentation and a careful assessment of the patient is always appropriate

Smith v. Cleveland ClinicNo. CV-744959 (Ct. App. Ohio 12/22/11)

�Howard Smith underwent knee surgery

�He arrested 2 days after surgery and was successfully resuscitated, but died approximately two weeks later

�There was a fault in the laboratory reporting system and the arrest was the result of high levels of potassium in his blood

Smith v. Cleveland ClinicNo. CV-744959 (Ct. App. Ohio 12/22/11)

�During the interval between the arrest and Mr. Smith’s death, his family met with Dr. El-Dalati, the chief medical officer (CMO) for Community Health Partners

�Unbeknownst to Dr. El-Dalati, the family had a concealed tape recorder and recorded the entire hour-long conversation

�Dr. El-Dalati explained what had happened, made apologies and admitted fault on the part of the hospital

Smith v. Cleveland ClinicNo. CV-744959 (Ct. App. Ohio 12/22/11)

�Suit was brought for medical malpractice and wrongful death

�The defense moved to exclude the tape recording from evidence on the grounds that the CMO had obtained his information from privileged sources, but it was denied

�The Court of Appeals affirmed the denial• It was not proven that the communications came from privileged sources

�Risk consideration: Care must be taken when making disclosures to avoid making statements regarding fault and liability

Davis v. Wooster Orthopedics & Sports MedicineC.A. No. 25337 (Ct. App. Ohio June 29, 2011)

� Barbara Davis underwent a lumbar microdiscectomy on July 24, 2004

• Dr. Knapic allegedly severed the common iliac artery and lacerated the iliac vein

• Ms. Davis died and her husband brought suit for wrongful death

� After the surgery, Dr. Knapic told the family that the surgery went fine, but that he had nicked an artery

• He told the family that he was sorry and took full responsibility

• The jury was told that Dr. Knapic took responsibility, but not that he was sorry

� At trial the jury returned a verdict for $3,000,000

• Dr. Knapic appealed

Davis v. Wooster Orthopedics & Sports MedicineC.A. No. 25337 (Ct. App. 9th Dist. Ohio June 29, 2011)

�Dr. Knapic argued that the jury should not have been told that he apologized because Ohio has an apology statute• The statute does not, however, make admissions of fault inadmissible

• The court of appeals held that it was proper to allow the admission of fault and exclude the apology

Medical Protective Company v. Duma Nos. 10-3866, 10-3867 (6th Cir. 05/01/12)

�Dr. Duma was an OB/GYN who was the attending physician for Michelle Heinrich during her pregnancy

�On 10/23/2005 he induced Ms. Heinrich’s labor• He then left the building and consumed nearly a fifth of vodka (his blood alcohol was subsequently determined to be 0.28)

�He returned and delivered the child, but both mother and baby suffered birth-related injuries

Medical Protective Company v. Duma Nos. 10-3866, 10-3867 (6th Cir. 05/01/12)

�Suit was brought and Medical Protective defended Dr. Duma, as it was required to do under its policy• The jury found that the hospital and Dr. Duma were both at fault and assigned punitive damages against Dr. Duma

�Medical Protective instituted an action to rescind and hold void its policy of insurance on Dr. Duma on the grounds that his actions constituted wanton endangerment, a misdemeanor under Kentucky law

Medical Protective Company v. Duma Nos. 10-3866, 10-3867 (6th Cir. 05/01/12)

�The trial court granted Medical Protective’s motion for summary judgment

�The Court of Appeals affirmed the grant of summary judgment• The policy excluded coverage in cases involving criminal acts

• Dr. Duma had admitted all of the elements of wanton endangerment

�Risk consideration: This case reinforces the need for good chain of command and zero tolerance for impairment policies

Beshah v. Commonwealth of VirginiaNo. 2070-10-4 (Ct. App. Va. 05/08/12)

�Ms. Beshah was an LPN employed by Potomac Center, a skilled nursing facility

�Ms. Beshah was, among others, required to care for J.E., a patient with dementia, incontinence, and behavioral issues who was bed-ridden• It was necessary to turn J.E. every two hours and comply with a strict medication regimen

Beshah v. Commonwealth of Virginia No. 2070-10-4 (Ct. App. Va. 05/08/12)

� J.E.’s family thought that he was not getting the necessary care, so they contacted the FBI• The FBI placed J.E.’s room under covert surveillance

�Although care was documented, the recording showed that Ms. Beshah had not:• Performed incontinence care each time she documented it

• Administered medications each time she documented it

• Turned J.E. each time she documented it

Beshah v. Commonwealth of Virginia No. 2070-10-4 (Ct. App. Va. 05/08/12)

�Ms. Beshah was convicted of four counts of forgery

�The Court of Appeals upheld the conviction• The forged documents potentially prejudiced the rights of J.E.

• The forged documents potentially prejudiced the rights of CMS, which based its reimbursement on the level of care provided

�Risk consideration: Care must be provided appropriately and it must be accurately documented

Cleveland Clinic Health System –East Region v. Innovative Placements, Inc.No. 1:11-CV-2074 (N.D. Ohio 06/04/12)

�M.D. died in the ED at Huron Hospital while under the care of Richard Briganti, R.N., among others• Nurse Briganti was working as temporary staff at Huron pursuant to an agreement with Innovative Placements, Inc. (IPI)

�Suit was threatened by M.D.’s estate and the Cleveland Clinic settled the matter• They tried, without success, to involve IPI in the negotiations

Cleveland Clinic Health System –East Region v. Innovative Placements, Inc.No. 1:11-CV-2074 (N.D. Ohio 06/04/12)

�Cleveland Clinic instituted the present action for indemnification and moved for summary judgment• The agreement at issue had a broad form indemnification clause

�The court held that Cleveland Clinic was entitled to partial summary judgment on the indemnification issue• But the allocation of fault was an issue of fact for the jury

�Risk consideration: Indemnification clauses are a great way to ensure that the party(ies) at fault bear their appropriate share of the liability

Jennings v. Badgett230 P. 3d 861 (Okla. 2010)

� Ms. Crawford was under the care of Dr. Badgett for her pregnancy

• Dr. Badgett consulted with Dr. Schlinke for advice, but Dr. Schlinke never examined or treated Ms. Crawford

� Ms. Crawford gave birth prematurely and her daughter (Shelby) was admitted to the NICU

• While in the NICU she developed osteomyelitis

� Ms. Crawford brought suit against various defendants, including Dr. Schlinke (alleging that, but for Dr. Schlinke’s advice, Dr. Badgett would not have delivered her prematurely)

• The trial court granted summary judgment in Dr. Schlinke’s favor

Jennings v. Badgett230 P. 3d 861 (Okla. 2010)

� The Supreme Court of Oklahoma noted that Dr. Schlinke:• Did not render medical advice to the plaintiff(s); • Did not treat Ms. Crawford; • Did not speak to anyone other than Dr. Badgett about Ms. Crawford’s care;

• Did not examine either Ms. Crawford or Shelby; • Did not receive a referral of either Ms. Crawford or Shelby for care or treatment;

• Was neither employed by or under contract to Dr. Badgett to provide care or treatment to Ms. Crawford or Shelby;

• Had not ordered or reviewed any lab tests; • Had not prepared any reports on Ms. Crawford’s care; and • Had not billed for any services rendered.

� Accordingly, the court did not find that a duty of care existed between Dr. Schlinke and Ms. Crawford and affirmed the grant of summary judgment

Barkes v. River Park Hospital328 S.W.3d 829 (Tenn. 2010)

�Mr. Barkes was seen in the ED for pain in his left forearm after working to clear some brush in his yard

• Denied upper arm, jaw or chest pain, or shortness of breath

• Seen by an NP who diagnosed a strain after conferring with an ED physician

�He died of cardiac arrest three hours after discharge

�Suit was brought for medical malpractice

Barkes v. River Park Hospital328 S.W.3d 829 (Tenn. 2010)

� River Park had a policy (in place since 1997) that required that all patients in the ED must be seen by a physician

• Impliedly, but not expressly, amended by policy implemented in 1999 that allowed patients in the ED to be seen by NPs

• It was within the scope of practice for an NP in Tennessee to see a patient like Mr. Barkes

� Jury found hospital 100% liable for Mr. Barkes’ death

• Found no negligence on the part of anyone else

� Court of appeals reversed

• Hospital could not be liable if none of the actors were negligent

� Appeal taken to the Supreme Court of Tennessee

Barkes v. River Park Hospital328 S.W.3d 829 (Tenn. 2010)

�The Supreme Court noted that the hospital had a policy in effect requiring that• “[a]ny patient arriving at the Emergency Department will be seen by the emergency department nurse; triaged; and then seen by the appropriate physician.”

• The policy also stated that “[a]ll patients presenting for treatment in the emergency room are assessed by an emergency physician.”

�The Supreme Court held that the hospital could be held directly liable for failing to follow its policies

Mental Health Cases

Pompeneo v. Verde Valley Guidance Clinic249 P. 3d 1112 (Ct. App. Ariz. 2011)

�Mr. Pompeneo was a recovering methamphetamine addict who was receiving treatment from VVGC• He was diagnosed with psychosis, psychotic disorder, attention deficit hyperactivity disorder, and borderline personality disorder

�He was given a prescription for a form of amphetamine

�He denied homicidal or suicidal ideations, but noted that he fantasized about killing his ex-girlfriend• He did kill his ex-girlfriend the next day

Pompeneo v. Verde Valley Guidance Clinic249 P. 3d 1112 (Ct. App. Ariz. 2011)

�Mr. Pompeneo pled guilty to first degree murder

�He then implemented a suit for medical malpractice against VVGC• The trial court granted summary judgment for VVGC on the grounds that Mr. Pompeneo pled guilty to first degree murder, which cut off any claim for negligence against VVGC

�The Court of Appeals held that this was a criminal act and that he admitted that he had acted intentionally, hence the summary judgment was proper

�Risk consideration: It is always appropriate to take threats against third parties, even subtle ones, seriously and take corrective action

O’Brien v. Bruscato289 Ga. 739, 715 S.E.2d 120 (Ga. 2011)

�Mr. Bruscato was under the care of Dr. O’Brien for a number of issues, including developmental delay, psychosis and schizophrenia• He was on a number of medications

�Dr. O’Brien took Mr. Bruscato off two of his medications because Dr. O’ Brien thought Mr. Bruscato might be experiencing complications• While he was off his medications, Mr. Bruscato killed his mother

O’Brien v. Bruscato289 Ga. 739, 715 S.E.2d 120 (Ga. 2011)

�Mr. Bruscato was indicted for his mother’s death, but was found not competent to stand trial.

�Mr. Bruscato’s guardian sued Dr. O’Brien for medical malpractice• The trial court dismissed the action, but the court of appeals reversed

�The Supreme Court of Georgia held that one cannot profit from wrongful acts that were performed intentionally• The Court held that the killing of Mr. Bruscato’s mother was not an intentional act because Mr. Bruscato lacked the competence to perform a criminal act

�Risk consideration: Any change in the treatment of a potentially dangerous patient must be done carefully with due consideration for the rights of all involved

White v. HarrisNo. 2010-246 (Vt. 09/29/11)

�An unnamed psychiatrist performed a telepsychiatric evaluation of Krystal White, then 14 years old• He submitted his report to her care team and had no further dealings with her or her care team

�Ten months later she committed suicide

�Suit for medical malpractice was brought against a number of defendants, including the telepsychiatrist

White v. HarrisNo. 2010-246 (Vt. 09/29/11)

�The trial court granted summary judgment for the telepsychiatrist• He had no on-going relationship with Krystal

• He terminated the relationship appropriately

�The Supreme Court of Vermont reversed• Telepsychiatrist could be liable for negligence occurring:

– During the session

– In the preparation of the report

�Risk consideration: The same rules apply to negligence in telemedicine as to ordinary provider-patient relationships

Peterson v. ReevesNo. A11A1870 (Ct. App. Ga. 03/30/12)

�Ms. Reeves was in and out of psychiatric facilities for treatment of depression and psychosis• She had attempted suicide at least once before

�She was treated by Dr. Peterson when she was a voluntary patient in a group home

�Two days after discharge from the group home she performed self-immolation, but she did not die• She brought suit against Dr. Peterson for medical malpractice

Peterson v. ReevesNo. A11A1870 (Ct. App. Ga. 03/30/12)

�Dr. Peterson moved for summary judgment on the grounds that he had no control over Ms. Reeves’ actions at the time of her self-immolation

�The trial court denied Dr. Peterson’s motion

�The Court of Appeals noted that control is not an issue in medical malpractice• It affirmed the denial of summary judgment because there were fact issues regarding whether Dr. Peterson met the standard of care

• He may have had a duty to control her actions

�Risk consideration: Great care must be taken in cases where the probability that the patient may attempt suicide is high to ensure the patient’s safety, including involuntary commitment

Stewart v. VivianNo. CA2011-06-050 (Ct. App. Ohio 01/23/12)

�Mercy Hospital commissioned an audit of its behavioral health unit (BHU) to determine whether the quality of care could be improved• The audit was performed and a report returned

�The hospital petitioned the state for a license to operate additional beds and referenced the audit report as part of the application process

�During this process, Michelle Stewart was a patient in the BHU and committed suicide• Suit was brought and her estate subpoenaed the audit report

Stewart v. VivianNo. CA2011-06-050 (Ct. App. Ohio 01/23/12)

�The hospital sought to quash the subpoena on the grounds that the report was part of the quality assurance process and was privileged• The trial court denied the motion to quash, holding that the hospital had waived the privilege by referencing the report in materials to the state (hence it was discoverable)

�The Court of Appeals disagreed and reversed the holding of the trial court• It found that there were no waiver provisions in the peer review statute

• It found that the document was commissioned and used for performance improvement purposes

�Risk consideration: If documents are to be considered confidential, they must be handled in accordance with the relevant peer review statute

Emergency Medicine

Morin v. Eastern Maine Medical CenterNo. 1:09-cv-00258-JAW (D. Me. March 25, 2011)

�Ms. Morin was 16 weeks pregnant when she went into pre-term labor and suffered a fetal demise

• She presented to EMMC and was screened

• Ultrasound did not reveal a heartbeat

�She was told to go home and deliver the fetal remains

• She expelled the fetal remains in her bathroom and later underwent a D&C for excessive bleeding

Morin v. Eastern Maine Medical CenterNo. 1:09-cv-00258-JAW (D. Me. March 25, 2011)

�Ms. Morin brought suit under EMTALA

• EMMC argued that she was not “in labor” because labor is the process of delivering a viable neonate

• Ms. Morin argued:

– She was pregnant, and

– She was having contractions

– Therefore EMTALA applied

�The court agreed with Ms. Morin and ruled that EMTALA applied

• Hence EMMC had a duty to stabilize her condition

Hale v. Northeastern Vermont Regional HospitalNo. 1:08-cv-82-jgm (D. Vt. 09/30/11)

�Ms. Hale was seen in the ED at NVRH on at least two previous occasions for severe headaches• On both of those occasions, she underwent a lumbar puncture

�She was seen in the ED on 05/18/06 for a headache• No lumbar puncture was performed and she was discharged with torticollis

�She was again seen on 05/21/06 for her headache• She underwent a CT of her head that showed a ruptured aneurysm

�She was transferred to a tertiary care facility for surgery, but suffered significant neurological impairment

Hale v. Northeastern Vermont Regional HospitalNo. 1:08-cv-82-jgm (D. Vt. 09/30/11)

�Suit was brought under EMTALA for the events on 05/18/06 for inappropriate screening and failure to stabilize• The court granted summary judgment to NVRH on the stabilization claim because there was no evidence that the hospital knew she had an emergency medical condition at that time

• The court denied summary judgment to NVRH on the screening claim, finding that evidence of past practices could indicate what constituted an appropriate medical screening

�Risk consideration: To the extent possible, ED care should be provided pursuant to policy or protocol to avoid the appearance that screenings were disparate• The provider should always be free to deviate from the protocol when it is prudent to do so, but should be careful to document rationale

Ivy v. St. Tammany Parish Hospital Service District No. 1No. 2011 CA 1624 (Ct. App. La. 03/23/12)

�Mr. Ivy was seen in the ED and was diagnosed with a penile fracture• The ED doctor consulted with Dr. Purohit, the urologist on call, who advised that Mr. Ivy be discharged with instructions to follow up with him in the morning

�When Mr. Ivy presented to Dr. Purohit’s office, he was told that he would not be seen because he did not have insurance

Ivy v. St. Tammany Parish Hospital Service District No. 1No. 2011 CA 1624 (Ct. App. La. 03/23/12)

�Suit was brought for a violation of EMTALA

�The trial court dismissed the action, stating that it was a standard of care issue

�The Court of Appeals affirmed, holding:• Mr. Ivy’s condition on discharge was stable, albeit time-sensitive

• Any injuries that he suffered were due to the acts or omissions of Dr. Purohit

�Risk consideration: Hospitals should consider requiring some level of follow up as a condition of taking ED call

Informed Consent

Villines v. North Arkansas Regional Medical CenterNo. CA 10-1196 (Ct. App. Ark. 09/07/11)

�Mr. Villines suffered from kidney stones and underwent surgery to remove them

�The hospital required a specific consent for anesthesia, but:• The form that Mr. Villines signed was essentially blank

• He had received pre-op medications before he signed

• He testified that he never talked to the CRNA

• He would not have consented to the use of spinal anesthesia had he been informed of its risks and benefits

�He underwent the procedure with spinal anesthesia and subsequently developed arachnoiditis

Villines v. North Arkansas Regional Medical CenterNo. CA 10-1196 (Ct. App. Ark. 09/07/11)

�Mr. Villines sued for lack of informed consent

�The trial court granted the hospital’s motion for summary judgment ruling:• The hospital had not acted negligently• Its failure to ensure consent was obtained did not cause the injury

�The Court of Appeals reversed the trial court’s decision• There were genuine issues of material fact regarding whether thehospital’s actions contributed to Mr. Villines’ injury

�Risk consideration: The patient’s informed consent for anesthesia should always be obtained and hospitals need to monitor this process

Miscellaneous

Leal v. Secretary, Department of HHS620 F.3d 1280 (11th Cir. 2010)

�Dr. Leal had privileges at Cape Canaveral Hospital, but the hospital suspended them for 60 days for abusive behavior

• The hospital reported him to the NPDB

�Dr. Leal sought to have the Secretary, HHS remove or amend the report, but his request was refused

�He brought suit but the district court denied relief

• He appealed to the Eleventh Circuit Court of Appeals

Leal v. Secretary, Departmentof HHS620 F.3d 1280 (11th Cir. 2010)

�The Eleventh Circuit held:

• The report fit squarely within the guidelines for reporting to the NPDB

• The Secretary’s decision was not arbitrary or capricious

�The court affirmed the ruling of the trial court

Medina v. Medina General Hospital No. 96171 (Ct. App. Ohio 08/11/11)

�Victor Medina died following surgery at MGH• No other facts were recited in the opinion

�Suit was brought for wrongful death

�The estate sought production of the number of cases in which a particular CRNA provided anesthesia and whether the CRNA charted any numerical values for the patient's end tidal CO2 in those cases

�The trial court allowed the discovery, but limited it to the nine months before Mr. Medina’s death

Medina v. Medina General Hospital No. 96171 (Ct. App. Ohio 08/11/11)

�The hospital appealed arguing that the information was protected health information

�The Court of Appeals disagreed, holding that• The estate was not seeking the production of records

• The estate was not seeking patient-specific information

• HIPAA does not protect mere numbers of cases

�Risk consideration: Performance improvement processes should always be directed at ensuring that high quality of care is provided by all providers• It is not always possible to protect sensitive documents in litigation

McKee v. Laurion No. A11-1154 (Ct. App. Minn. 01/23/12)

�Mr. Laurion’s father suffered a hemorrhagic stroke and was seen by Dr. McKee after he was discharged from the ICU

�Mr. Laurion posted a negative account of Dr. McKee’s first visit on a physician rating website

�Dr. McKee learned of the posting and filed suit for defamation

McKee v. Laurion No. A11-1154 (Ct. App. Minn. 01/23/12)

�The trial court dismissed the claims, holding that the allegedly defamatory statements constituted opinions, true statements, and statements too vague to carry defamatory meaning

�The Court of Appeals held that there were factual issues regarding:• What was said and by whom• Whether the statements were true

�The Court of Appeals reversed the dismissal of the action

�Risk consideration: Providers need to be conscious of their footprint in cyberspace to avoid negative postings

Selective Insurance Company of America v. Rothman 208 N.J. 580; 34 A.3d 769 (N.J. 2012)

�Beth Mazin was a physician assistant (PA) working in Dr. Rothman’s office• One of her duties was to perform electromyelographic studies (EMGs)

�Selective Insurance is a health insurer who reimbursed physicians for EMGs

�New Jersey has a statute that only allows persons licensed to practice medicine to perform EMGs

�Selective Insurance denied payment in a specific case for an EMG performed by Ms. Mazin

Selective Insurance Company of America v. Rothman208 N.J. 580; 34 A.3d 769 (N.J. 2012)

�The case took many twists and turns and eventually was heard by the Supreme Court of New Jersey

�The Supreme Court held that Selective Insurance was not required to reimburse for an EMG performed by a PA• It also held that its decision could be applied retroactively, thus allowing insurers to recoup payments for EMGs performed by PAs previously

�Risk consideration: All job descriptions or delineations of privileges need to be consistent with the provider’s statutory scope of practice, especially if s/he works under a limited scope of practice

Questions?

Thank You for Your Attendanceand Participation!

John C. West, JD, MHA, DFASHRM, CPHRMSenior Healthcare ConsultantGlobal Loss Prevention

John.West2@chartisinsurance.com

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