Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘hospitals’

“FaithGuard” insurance product leads to bias suit

In order to enhance diversity, it was necessary to suppress it, cont’d: The GuideOne Mutual insurance company offers, in 19 states at last report, what it calls a “FaithGuard” policy rider with features it believes are valued by some churchgoers. In particular, to quote its critics, the rider

waives insurance deductibles if there is a loss to personal property while it is in the “care, custody and control” of the insured’s church; pays church tithes or donations if the insured suffers a loss of income from a disability; and doubles medical limits for an injury received while sponsoring an activity conducted on behalf of the church.

All three provisions might make a family feel more confident about pledging material support or volunteer time to its church, by limiting the potential financial downside in case of accidents or misadventure. But now GuideOne is on the receiving end of a lawsuit filed by the National Fair Housing Alliance, on the grounds that the rider discriminates against non-churchgoers — which is to say, by providing benefits they would have no interest in purchasing. In particular, complains NFHA,

The benefits of FaithGuard are not available to persons who suffer a covered loss or disability while engaged in similar activities but who are not religious, who do not belong to a church, or who do not attend church or participate in religious activities.

Of course people in these latter categories would never be inclined to purchase FaithGuard in the first place, any more than people who never step on airplanes would go out of their way to buy flight insurance. Instead, if they worry about the financial risk of accidents, they would select one of the innumerable insurance products readily available with no particular religious component. But to achieve religious nondiscrimination in the eyes of NFHA, it’s apparently crucial not just that we non-churchgoers have access to every sort of risk coverage we might take a notion to buy, but that FaithGuard’s customers not have access to one they might like. Will the result of this lawsuit if successful be more diversity? Or, again, less? (earlier). More: Rick Armon, “Akron suit claims insurance for churchgoers discriminates”, Akron Beacon Journal, Nov. 27; Religion Clause (Howard M. Friedman), Nov. 28.

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Fonza Luke v. Baptist Medical Center

Stephanie Mencimer: “That’s when the surprise came: Baptist Health argued that Luke had given up her right to sue back in 1997 when the hospital presented the arbitration agreement—even though she’d refused to sign. Simply by continuing to show up for work, Baptist’s lawyers said, she’d agreed to the terms. Acting contrary to established contract law, which requires both parties to consent to a contract before it becomes binding, a federal judge accepted the hospital’s argument.” Shocking, huh? But not true. Mencimer gets both the facts and the law wrong:

  • Baptist Health’s argument didn’t come out of nowhere: it was expressly told to Luke at the time that “the program is binding on all employees” and her decision to “continue her current employment, after receiving notice of this Program, will mean that you have agreed to and are bound by the terms of this Program.”
  • Luke agreed in court that she had notice of the program, that she understood the program, and that she continued working at the hospital.
  • The court thus found that Luke consented to the agreement; in doing so, it didn’t act “contrary to established law” at all; several Alabama Supreme Court opinions recognized that continued employment is sufficient consideration to support an arbitration agreement, and that agreeing to remain employed by an employer with a mandatory arbitration program is conclusive evidence of assent. (Of course, under Erie, federal courts are bound by state supreme court interpretations of state law.)
  • The district court’s opinion was affirmed per curiam by a three-judge panel of the Eleventh Circuit that included two Clinton appointees and a Carter/GHW Bush appointee.
  • And, oh, by the way, Luke began arbitrating her case before the court even ruled, showing that she understood where the law actually was, though now she claims otherwise.

Luke, having received the benefit of an employment agreement that was able to offer her higher wages because of her agreement to arbitrate employment disputes, sought to rewrite the contract after already taking advantage of it. (Update: a commenter ironically signing him- or herself as the Multistate Bar Exam has a nice cite to the Restatement.)

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“You can’t scan everybody. You can’t cath everybody.”

Which means, says Kevin Pho, that you’re not always going to succeed in catching the extremely rare aortic dissection: “No test is 100% accurate, and there will always be missed cases no matter how good the care was.” (Feb. 18; John Maxfield, “Besieged by scourge of medical ‘malpractice’”, Naples (Fla.) Daily News, Feb. 16 (Mahoning County, Ohio case)).

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Scruggs scandal update: sweet potatoes by the acre

Some developments of the past ten days or so:

* In major blow to defense, Judge Biggers denies motions to suppress wiretap evidence and evidence of similar bad acts [Rossmiller]

* Balducci says he and Patterson got $500K from Scruggs to influence AG Hood to drop indictment of State Farm, motive being to advance civil settlement [Folo]

* WSJ gets into the act with some highlights of wiretap transcripts [edit page; earlier here]

* Sen. Trent Lott says he’s a witness, not a target, of federal investigation [Anita Lee, Biloxi Sun-Herald]

* Scruggs off the hook on Alabama criminal contempt charge [WSJ law blog, Rossmiller, Folo]

* “Mr. Blake has served for many years as a conduit and a layer of separation, if you will, between Mr. Scruggs and other people on sensitive issues.” (Balducci transcript highlights, Folo; more)

* In effort to get Zack Scruggs indictment dismissed, his lawyers dwell on switch from “y’all” to “you” as implying shift in persons addressed from plural to singular [Folo first, second; Rossmiller first, second; on a “sweet potatoes” point, NMC @ Folo and sequel; also]

* DeLaughter/Peters branch of scandal reaches deep into Jackson legal community [Adam Lynch, Jackson Free Press]

* Article in new American Lawyer notes that Scruggs’s ambitious suits have lately hit a big losing streak, notably those against HMOs, nonprofit hospitals and Lehman Brothers [Susan Beck]. And Lotus catches an interestingly lawyerly wording on John Keker’s part [Folo]

* I’m quoted and this site is discussed in an article on blog coverage of the case; my lack of clarity as an interviewee probably accounts for Scruggs being said to have addressed audiences at the Manhattan Institute “a few” times, when if memory serves the correct reference is “twice”. [Patsy Brumfield, Northeast Mississippi Daily Journal (Tupelo) @ Folo]

* For more background see our Scandals page; also YallPolitics.

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Damnum Absque Injuria?

Sean Dubowik is a Phoenix strip club owner who had the words “Hot Rod” tattooed to a most private (and sensitive) part of the male anatomy.

This feature was noted with some degree of amazement, although probably not by the type of person Dubowik intended. His gall bladder surgeon, one Sean Hansen, made the observation during surgery prep, and made use of his cell phone to record the artwork. He then showed it around the hospital a bit, resulting in one of the surgical staff (the one with the conscience) calling Dubowik.

Dubowik said he’d gotten the tattoo on a $1,000 bet.

“It was the most horrible thing I ever went though in my life,” Dubowik said. He said he chose Mayo Clinic for treatment because his mother had five surgeries there.

“They were supposedly the best of the best. I have no complaints about the medical care I was given,” he said. “But now I feel violated, betrayed and disgusted.”

Query: can one who has his penis tattooed with “Hot Rod” on a $1,000 bet convince a jury — any jury — that he could be “violated, betrayed and disgusted”?
(AP, Dec. 17, 2007)

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Don’t IX

Another bunch of things not to do if you’re a member of the legal profession.

  • Don’t get caught pursuing forged fen-phen claims. (Robert Arledge, Vicksburg, Mississippi, sentenced to 6.5 years, the only lawyer to date to be sentenced in a much larger fen-phen scandal.) [ABA Journal]
  • Don’t try to dissuade a witness from testifying at a deposition. (Cleary Gottlieb, which said it would appeal the judge’s order of sanctions.) [WSJ Law Blog]
  • Don’t inflate your GPA and include fake awards on your resume. (Gregory Haun, DC, recommended for suspension, resigned his six-digit BigLaw associate job.) [Legal Times]
  • Don’t end your jury service by casting a vote to break a deadlock and then sign a statement drafted by the plaintiffs’ attorney asking for a new trial saying that you did so so you can return to work. (California bar has recommended disbarment for Francis Fahy.) [ABA Journal; Recorder ($); Law.com ($)]
  • Don’t steal money from your clients by forging their signatures on insurance company releases to get their settlement money. (Richard Boder, New York, caught as part of a larger scandal involving the illegal use of paid runners to bribe hospital employees about auto accident injuries, sentenced to a year in prison.) [NY Law Journal]
  • Don’t read Maxim in the courtroom. (Todd Paris, held in contempt by North Carolina judge.) [WSJ Law Blog]
  • Don’t have an affair with a judge you’re practicing in front of, or vice versa. (Federal Way, WA, Municipal Court judge Colleen Hartl resigned after bragging about an affair with public defender Sean Cecil, who still has 5 Avvo stars for professional conduct, but has been the subject of a formal complaint to the bar.) [AP/Post-Intelligencer; Federal Way News; Lat]

(Earlier: Nov. 5, etc.)

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$25 million for yanking hospital privileges

On Feb. 7 a jury found the Charleston Area Medical Center in West Virginia had wrongly revoked the privileges of vascular surgeon R. E. Hamrick, Jr. over a financial dispute. It awarded Hamrick $25 million, including $20 million in punitive damages; the dispute arose over Hamrick’s desire to set up a self-insurance fund against professional liability as opposed to purchasing outside insurance. CAMC has retreated from initial talk of pay freezes for staff, but it is unclear where it will come up with the money — about 4 percent of its annual budget — in ways that have no impact on patients: “‘Any time you have to spend $15 million, how can it not affect the way we care for people?’ asked Dr. Tom Bowden, who also serves on CAMC’s Board of Trustees.” However, expert witness Jonathan Cunitz of Westport, Ct., who testified for the plaintiffs on punitive damages, told the Daily Mail that patients and employees “shouldn’t be concerned for a second” about cutbacks because the nonprofit community hospital could just pull the money from the magic rainbow wishing well could cover the punitive damage award “just out of the money generated by Hamrick’s surgeries,” in the newspaper’s phrasing. It sounds almost as if hospital revenues from surgery constitute pure gravy and do not involve any correlative expenditures. The hospital’s CEO notes that the damage award “was higher than the $15 million CAMC spent to purchase the former Putnam General Hospital in 2006.” (Justin D. Anderson, “Doctor responds to colleague’s lawsuit win against CAMC”, Charleston Daily Mail, Feb. 12; Eric Eyre, Charleston Gazette, Feb. 13, Feb. 20, Feb. 21; Chris Dickerson, West Virginia Record, Feb. 7).

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When Clinton and Obama agreed

Before they officially became presidential candidates, the Illinois and New York senators co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.” (See: http://content.nejm.org/cgi/content/full/354/21/2205)

They sympathized with physicians over escalating insurance costs and condemned the current tort system for creating an “intimidating liability environment.” Still, Clinton and Obama said, it’s more important to focus on how to improve patient safety than “areas of intense disagreement,” such as caps on financial awards to patients.

They introduced legislation, which died in committee in 2006, to provide money and assistance to physicians, hospitals, insurers, and health care systems to start programs for disclosure of medical errors and compensation to patients. The bill would have created an office of patient safety and health care quality to establish a database to track incidents of malpractice and fund research into guidelines to prevent future injuries.

“Physicians would be given certain protections from liability … in order to promote a safe environment for disclosure. … This legislation would provide doctors and patients with an opportunity to find solutions outside the courtroom. In return, [hospitals, insurers, and others] would be required to use savings achieved by reducing legal defense costs to reduce liability insurance premiums and to foster patient-safety initiatives.”

(Mark Crane, MedPageToday, Jan. 7). More: see Ted’s December post at PoL.

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High cost of health privacy laws, cont’d

More HIPAA madness? On Wednesday, in a crime that cast a chill through the mental health community, a Manhattan therapist was brutally slaughtered in her office by a man whose actions seemed consistent with those of a current or former patient with a grudge. The assailant escaped on foot, and although his image had been captured on surveillance tape, police were nowhere near beginning to know where to start looking for him: “Because of privacy laws, police hadn’t been able to access patient records as of late yesterday, sources said.” (New York Post, Feb. 14)(via Bader). On medical privacy laws and the Virginia Tech rampage of Seung Hui Cho, see Jun. 16, 2007.

More: Commenter Supremacy Claus says not to blame HIPAA, which has an exemption for police reports.

Friday morning sequel: This morning’s New York Post sticks with the original story and fleshes out the HIPAA role somewhat:

The hunt for the savage beast who butchered an Upper East Side therapist has hit a roadblock – because detectives can’t access her patients’ medical records under federal privacy laws, The Post has learned.

Police believe the meat-cleaver-wielding psycho who killed Kathryn Faughey on Tuesday night inside her office on East 79th Street could be the doctor’s patient – and need access to her records to identify him.

But police sources said because of the Health Insurance Portability and Accountability Act, signed by President Bill Clinton in 1996, investigators are having a hard time gaining access to those records.

“A case like this gets complicated because of medical privacy protections,” a source close to the investigation told The Post yesterday.

The federal law states that doctors, hospitals and health-insurance companies must protect the privacy of patients – even in a murder investigation – and that only through the use of subpoenas can authorities hope to obtain such information.

Police sources said investigators have applied for a subpoena, but have yet to receive it. Even if the subpoena is issued, patients can sue to keep their records private. …

[D]etectives have tried to get around the law by tracking down patients through sign-in sheets at the building’s front desk and through surveillance cameras in the lobby, sources said.

(Murray Weiss, Jamie Schram and Clemente Lisi, “Vexed by ‘Slay File’ Madness”, New York Post, Feb. 15). My Times (U.K.) article on the problems posed by health privacy laws is here.

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Workplace bullying bills

As a Tennessee appellate court noted in rejecting Joan Frye’s lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, bellig­erent or otherwise hostile and abusive does not violate civil rights statutes.” Some legislators are trying to change that (excited in part by Suffolk Law Professor David Yamada’s theory of making “bullying” actionable). The ABA Journal is the latest to note the trend. (The article unfortunately repeats the false smear against my colleague John Bolton.) As we noted last May,

Enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing “superpersonnel departments” dispensing financial balm for injured feelings in the workplace.

Employment attorney Richard Block is more blunt in the ABA Journal: “You’re talking about a lifetime annuity of work for employment lawyers.” Bills are pending in thirteen states.

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