Holland & Hart Healthcare Law Blog

THE REPUBLICAN HEALTH CARE LIABILITY REFORM PACKAGE

 Deep in the Republican Alternative Healthcare reform proposal unveiled by Rep. John Boehner (R) Ohio on November third, (The “Common sense Health Care Reform and Affordability Act,” can be found “Division C- Enacting Real Medical Liability Reform.” This section purports to nationalize state medical malpractice and medical product liability law and procedure into a uniform federal code which provides greater protection for doctors, pharmaceutical companies and medical device manufacturers.

"TOKE TIME" FOR MEDICAL MARIJUANA – New Federal Enforcement Rules Announced.

 The Justice Department announced new guidelines for medical marijuana use and dispensaries today that directs federal law enforcement officials to reallocate their resources away from federal prosecution of medical marijuana users and dispensaries in states that have “legalized” medical marijuana. The Justice Department will continue their pursuit of serious drug traffickers and those engaged in violence, money laundering , sales to minors and in the unlawful use of firearms.  They will also pursue those attempting to use the distribution of medical marijuana as a cover for illegal use or trafficking.

10th Circuit Affirms Summary Dismissal of Nephrologists’ Monopolization Shootout in the Streets of Durango.

Dr. Mark F. Bevan has a thriving nephrology practice in Farmington, New Mexico. Mercy Medical Center of nearby Durango, Colorado repeatedly invited him to provide kidney dialysis and other nephrology  services in’ Durango, which he declined.   The hospital then with the financial support of the  Southern Ute Indian Tribe hired a different nephrologist to practice his craft in Durango. Under the pre-existing bylaws of the Hospital, the hiring of the new doctor automatically resulted in the cancellation of Dr. Bevan’s consulting privileges at the hospital. Consulting privileges were designed for the purpose of filling gaps in physician coverage. He was left with the status of being a member of the consulting staff. He then applied for active staff privileges at the hospital , but found it difficult to ethically meet the requirement in the by-laws that he reside within 30 minutes of the hospital. The hospital, in an attempt to pre-empt and residential success by Dr. Bevan, granted the new physician the exclusive right to practice nephrology at the hospital. Dr. Bevan responded with a claim of monopolization and attempted monopolization of the nephrology physician services in Durango in violation of Section 2 of the Sherman Act.

 

“Don’t Touch The Sheriff:” Tepid Reaction to harassment claim by Chiropractic Practice Results In $100,000.00 Title VII Verdict for Nebraska Therapist

 One would think that a health care practice group would be on its toes in dealing with a potential Title VII complainant whose last name was Sheriff and its failure to take her full measure and to promptly and reasonably initiate appropriate action resulted in a $100,000.00 verdict in Federal Court for the plaintiff.  In Sherri Sheriff v. Midwest Health Partners, P.C. et al., 8:07CV 475, (D. Neb. 2009), the Court upheld a jury verdict in Ms. Sheriff’s favor. The defendants argued that the conduct involved did not arise to the creation of a hostile environment and the evidence was insufficient to substantiate the damages, to establish a causal nexus between  the conduct and the plaintiff’s gender, insufficiently severe enough to rise to actionable harm and the or to establish that the defendants failed to take prompt remedial action.

 

HEALTHCARE REFORM PART III:-THERE WILL BE PAIN!

 One of the unfortunate realities about Health Care Reform is that there will be pain.   The current trajectory of health insurance costs is unsustainable.  We are pushing 18% of the Gross National Product, more than double other industrialized countries and severely depressing our competitive edge in the world economy. Left unattended health care will continue to eat into American productivity, lifestyle, competitiveness and influence.   The solutions are not difficult to understand. The question is how to equitably distribute the pain. The strategy of “just saying no “ will just momentarily and ineffectively defer the pain. There are three ways, or combinations there of  to do it. The menu please!

CMS ISSUES MEMORANDUM REGARDING HOSPITAL EMTALA OPTIONS IN EVENT OF H1N1 FLU PANDEMIC.

On August 14, 2009, CMS issued a memorandum on requirements of hospitals under the Emergency Medical Treatment and Labor Act (“EMTALA”) in the event of a surge in hospital emergency room visits for H1N1 influenza treatment. EMTALA requires all hospitals to provide an appropriate medical screening examination on presentation to determine whether the patient has an Emergency Medical Condition. If it determines that one exists, the hospital must treat and stabilize the patient within its capacity or transfer a patient to a hospital that has a capability and capacity to stabilize the condition. In anticipation of a surge in emergency room visits CMS issued additional guidance for hospitals to comply with EMTALA.