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Week in Review

by Kroger Burrus on December 9th, 2012


McQuade v. Berry
A plaintiff in a medical battery suit faxed the required expert report to the defendant dentist and deposited a copy in the mail on the night of November 22, 2011, one day before the statutory deadline. After the trial court denied his motion to dismiss, the dentist argued on appeal that because the postmark was dated November 23, 2011 he was entitled to a presumption that the report was filed late. He also noted that documents faxed after 5 PM are deemed served the following day. The appellate court found the report timely, concluding that a certificate of service dated November 22 was sufficient to establish timely service on that date because documents are deemed served on the date they are placed in the custody of the US Post Office.

Primary Health Physicians v. Sarver
A doctor who signed a 2-year non-compete agreement began working for another clinic shortly after the doctor’s employment terminated. The clinic was denied a temporary injunction on the basis that it had not proven it would suffer irreparable harm if the doctor continued to practice. The clinic argued that the common law requirements for a temporary injunction did not apply because the state’s Covenants Not to Compete Act pre-empted the common law. The Dallas appellate court held that the common law requirements for a temporary injunction were still applicable, and that the Covenants Not to Compete Act only pre-empted the common law with respect to final judgments. The court noted that there is a split of authority among its sister courts on this subject.

St. Joseph Regional Health Center v. Hopkins
The plaintiff in a health care liability claim died after the jury returned a verdict for $411,936 in future custodial care expenses, but before a final judgment was rendered. The defendant had requested an order permitting periodic payments of the future custodial expenses, but withdrew the request after the plaintiff’s death. The defendant moved to strike the award on the basis that no custodial expenses would ever be incurred, but was denied. The appellate court affirmed, noting that if the defendant had not withdrawn the request for periodic payments the trial court would have been required to grant it. While the obligation to continue making periodic payments for future custodial care expenses terminates upon a plaintiff’s death, the obligation to pay a lump sum award survives.

Garza v. Carlson
A plaintiff who obtained a default judgment against the defendant physician filed the required expert report more than 120 days after the original suit was filed. The trial court dismissed the claim on the basis that the expert report was not timely filed. The appellate court reversed, concluding that the deadline for filing an expert report was tolled until after the defendant filed an answer and the default judgment was set aside. While the default judgment remained in place the plaintiff’s allegations were deemed admitted and no expert report was necessary until these admissions were withdrawn.

UT MD Anderson v. Baker
A machinist filed suit alleging that he and his family were exposed to lead dust that collected in his work clothes after MD Anderson failed to provide adequate safety equipment. The cancer center sought dismissal on the basis of sovereign immunity, arguing that although immunity is waived in situations involving the use of tangible equipment the plaintiff’s allegations amounted to a claim of “non-use.” The appellate court rejected the immunity claim, concluding that the machinist’s use of the milling equipment constituted a “tangible use of equipment” even though the allegation was that the injury was caused by non-use of safety equipment.

Young v. Medical Imaging Diagnostic Associates
A woman alleging that the physician who reviewed her x-rays missed a ureteral injury sued the physician and an imaging company she claimed was vicariously liable for the physician’s conduct. The imaging company, which denied that the physician was an employee, obtained dismissal on the basis that it was not identified in a Chapter 74 expert report. The Corpus Christi – Edinburgh appellate court reversed the dismissal, ruling that because the report described the physician’s conduct it implicated the imaging company under a vicarious liability theory. The court affirmed dismissal of the direct liability claims against the imaging company on the basis that the report did not mention the company.


Medicaid Expansion Effect Will Vary By State
Some states are expected to experience savings, while others should expect cost increases as a result of Medicaid expansions prompted by federal health law reforms. States that opt not to expand their Medicaid programs may still experience increased costs associated with other mandates in the Affordable Care Act.

Medicare Reimbursement Rates Rise With EMR Adoption
Medicare reimbursements have increased by 47% since 2006, a trend that correlates with increased adoption of electronic medical records. Billing entries can be copied and pasted from one EMR to another, permitting health care providers to quickly document procedures performed on multiple patients. While improved efficiency is touted as a benefit of EMR adoption, concerns have also been raised that it will facilitate fraud. The American Hospital Association has noted that an increase in reimbursements may be associated with more accurate documentation of legitimate procedures, rather than fraud.

Doctors who have adopted EMR systems report mixed feelings. Frustration with the technology has driven some doctors to abandon their practices. Others have found that while the digital transition can be difficult, the same software that catches medication errors also identifies missed opportunities for reimbursements. Concerns have also been raised that the ease with which EMRs can be accessed on mobile devices and tablets will lead to HIPAA violations and security breaches. Similar concerns have been raised over video-conferencing software such as Skype, which offers convenience for patients and practitioners, but may lack sufficient security to comply with HIPAA.

DOJ Collects Record Amounts Under False Claims Act
The Department of Justice collected a record-setting $4.9 billion under the False Claims Act throughout fiscal year 2012. The DOJ reported a record 647 qui tam suits brought by whistleblowers, netting a recovery of $3.3 billion from defendants who committed fraud against Medicare, Medicaid or other federally supported programs.

Uninsured Patients Sue Non-Profit Chicago Hospital
Uninsured patients have sued a Chicago hospital alleging that its policies create “bureaucratic barriers” that make it difficult for low-income residents to receive charitable care. The plaintiffs allege that the hospital practices an aggressive debt collection policy and has repeatedly targeted patients whose financial aid applications were lost.

Studies Find Improved Survival Rates For Cardiac Patients, Premature Babies
Survival rates for patients who suffer in-hospital cardiac arrest and for premature babies have improved substantially in recent years. From 2000 to 2009, the survival rate for cardiac arrest patients increased from 14% to 22%, a trend attributed to the adoption of established guidelines for resuscitative care. A separate study observed that the survival rate for babies born between 22 and 25 weeks increased from 40% to 53% between 1995 and 2006. This trend is attributed to measures such as keeping infants warm and administering steroids to help children with underdeveloped lungs.

Accountable Care Organizations Cover 10% of Americans
Accountable Care Organizations now cover 31 million Americans, representing about 10% of the population. The number of patients covered by ACOs is expected to increase as more organizations join CMS ACO programs or become commercial ACOs. Nationwide, 17 states have declared their intent to participate in Medicaid expansions, which could promote further adoption of the two-year-old health care delivery model. Nine states, including Texas, have announced plans to opt out of Medicaid expansion.

Nurse Shift Restrictions Promoted
Researchers who found that long nursing shifts lead to job dissatisfaction, burnout, and compromised patient care believe states should consider imposing limits on nurse shift length and voluntary overtime. Similar restrictions exist to limit the number of hours residents can work, but compliance with these limits is weak. Doctors have reported routinely lying about the number of hours they worked and in a 2008 study, 87% of interns reported working past their shift limits.

Medicare Slammed For Inadequate EHR Incentive Oversight
Up to $20 billion in taxpayer money has been made available to offer incentives to doctors and hospitals that can demonstrate they are using electronic health records in a meaningful way, but Medicare’s efforts to police payments have been inadequate. The Department of Health and Human Services’ Office of Inspector General criticized the agency in a recent report for not making sure that incentive requirements were met before payments were made. Without adequate oversight to ensure that EHR systems are being used meaningfully, some fear the HITECH incentive program could be vulnerable to fraud.

Hospital Practice Acquisitions Prompt Investigations, Litigation
Hospitals across the country are aggressively acquiring physician practices, prompting investigations and litigation over allegations that doctors are being pressured to admit patients unnecessarily and order costly tests and procedures. Several doctors have filed suit across the country alleging that they were improperly pressured to admit patients or refer patients to doctors working for the same hospital, and some have claimed they were retaliated against after raising objections to hospital practices. Federal authorities recently began a campaign soliciting information from emergency physicians about inappropriate admissions. Regulators have also started examining physician contracts for violations of laws that prohibit hospitals from providing rewards for admitting patients or ordering lucrative tests and procedures.

US Birth Rate Hits Record Low
The US birth rate has hit the lowest level since 1920, having fallen by 8% between 2007 and 2010. The drop may be attributable to the recession, but could also reflect increased access to contraception for Latino women. The birth rate dropped by 6% among US-born women, 14% among foreign-born women, and 23% among Mexican immigrant women. The overall rate was 63.2 per 1,000 women of child-bearing age, almost half the rate experienced in 1957 when the nation’s birth rate peaked during the Baby Boom years.

Fewer Doctors Choosing General Medicine
Fewer young doctors are choosing careers in internal medicine and current training models may not produce enough general practitioners to care for an aging population, according to a recent report by the Journal of the American Medical Association. Only one in five residents enrolled in general medicine programs intend to pursue a career in internal medicine, opting instead to specialize in areas including cardiology, gastroenterology, and pulmonary medicine. Opportunities for a greater work-life balance and higher pay as a specialist are likely contributors to the trend.

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