Holland & Hart Healthcare Law Blog

RETURNING VETS - OUTRAGEOUS DELAYS IN VA CARE AND BENEFIT APPEALS.

 Pending before the U.S. Ninth Circuit Court of Appeals now is the case of Veterans For Common Sense v. Eric K Shinseki, et al, captioned in the District Court below as Veterans For Common Sense v. James B. Peace, M.D., 563 F. Supp. Ed 1049 (N.D. Cal. 2008) . The case raises the issue of the power of the federal courts to enter declaratory and injunctive relief to force the Veterans Administration to timely provide mental health benefits and to timely resolve administrative disability appeals for veterans. The trial court below abdicated all responsibility. It asserted that the sole remedy was up to the VA itself and Congress because of statutory limitations on judicial oversight of the VA.  It said further that to solve the problem it would have to overhaul the entire system, which it was inadequately prepared to do.The facts are shocking and would not be accepted by the general populace without rioting in the streets (or at least at congressional town meetings). The trial court mentioned the following facts in its opinion.

There are approximately 25 million veterans in the U.S. 5 to 8 million veterans are enrolled in the VA. 154,000 Veterans are homeless. One out of three veterans returning from Iraq is seen at the VA for mental health visits within a year of their return stateside. According to Rand Corporation study, 18.5% of U.S. Service Members have Post Traumatic Stress Disorder (“PTSD”). Half of those who need it get it. Slightly more than half who get it, bet slightly more than minimally adequate care. 300 thousand service members now deployed in Iraq and Afghanistan currently suffer from PTSD or severe depression. The suicide rate for returning G.I.s is 3.2 times higher than that of the general population. The VA experiences 4.5 suicides per day from its current patient population.

The VA Office of Inspector General reported in May, 2007 that 61.8% of VA facilities had not then implemented suicide prevention strategies for returning G.I.s. In April, 2008 there were 85450 veterans on VA waiting lists for mental health services. One veteran seeking help committed suicide after being told that he was number 26 on a waiting list to obtain mental health care. The fact that these soldiers come largely from lower economic and educational classes of people not skilled in understanding or maneuvering through the complex VA assistance system may be one of the reasons for lack of attention to the problem. 82% of the Army and 89% of the Marine Corps are composed of men and women with a high school education or less.

There is an appeal system within the VA for resolving benefit and disability claims disputes. Its record for efficiency and timeliness is appalling. Determinations are first made in the VA Regional Offices (“RO”s). It frequently takes a year for the RO to make a decision on an appeal. If denied a veteran can file a Notice of Disagreement (“NOD”) which commences an appeal to the Board of Veterans Appeals (“BVA”).  It generally takes on average 4.4 years for the case to move from the RO to the BVA determination.
The BVA affirms the RO decision only 20% of the time. It finds for the veteran 20% of the time. In the remaining 40% of cases it remands the case to the RO for further proceedings. Many if not most of these remands could have been avoided by the RO’s through competent documentation and policies. On remand, even though there is specific statute that requires “expeditious” action on remand, there is an average delay of another 499.1 days before the matter is returned to the BV.

The question is whether the Ninth Circuit will wash its hands of the matter as well and leave this matter to the Congress which passes directives without remedies or the cultural lassitude of the VA for business as usual. This may be another of those intractable problems that are too big to resolve. Semper Fi.

E-PATIENTS AND ELECTRONIC PERSONAL HEALTH RECORDS (“EPHR”)

 The cost of health care is an enormous drag on the productivity of American business. When the cost of health care for employers rises to 20% of the cost of doing business in some industries, the structural handcuffs of health care costs can make the difference in economic survival or not.  The advent of electronic medical records (“EMR”) has been received in some quarters as a panacea for the achievement of improved quality of health care delivery and reduction of the crushing runaway costs of the system.

WIFE STATES CLAIM AGAINST DENTAL MANAGEMENT COMPANY FOR DELIVERY OF DRUGS HER SURGEON HUSBAND OVERDOSED ON.

The denial of the defendant’s motion to dismiss in the case of Kim v. Interdent, Inc., No. C 08-5565 SI in the U.S. District Court for the Northern District of California seems to fall among those odd “man bites dog” cases that are both perplexing and irrational. Ms. Kim is the surviving spouse of Dr. Richard D. Bae, who apparently developed a fondness for Fentanyl, a highly addictive drug used primarily by anesthesiologists in sedating patients. The defendant, a dental practice management company, delivered the drug to Dr. Bae, in bulk, which he proceeded to carry around to the various Interdent offices where he performed procedures. Dr. Bae accidently overdosed on the drug and collapsed on the bathroom floor of the Interdent office in Stockton, California, on December 13, 2006. He never regained consciousness and died on April 16, 2007.

MONTANA SUPREME COURT AFFIRMS INJUNCTION AGAINST HOSPITAL SUSPENSION OF PHYSICIAN WHO DENIED IT ACCESS TO HIS FAMILY’S PRIVATE MEDICAL RECORDS.

 The Montana Supreme Court affirmed the issuance of a preliminary injunction restraining Community Medical Center, a hospital in Missoula, Montana for suspending the medical staff privileges of a hospitalist whose only offense was to refuse to grant unrestricted access to his family’s medical records to a hospital subcommittee. The physician designated as “Dr. Doe,” in the case of John Doe, M.D. v. Community Medical Center, Inc., DA08-0397, decided on November 24, 2009, asserted that that Community Medical Center  (“CMC”) breached the terms of its contract with him embodied in CMC’s medical staff bylaws and policies by summarily suspending his privileges with no demonstration of “ a substantial likelihood of imminent impairment of the health or safety of any patient, perspective patient, employee or other person present in the medical center” –the sole designated basis for summary suspension at CMC.

PERSONAL MEDICAL RECORDS (“PHR”): PROMISE AND PITFALL

 Hospitals, Physicians and other health care providers continue to struggle with the cost, interoperability, access and security issues related to adoption of Electronic Health Records (“EHR”). The Obama administration is very much behind the development of EHR for its anticipated quality improvement and cost reduction benefits. Healthcare providers are very touch about their medical records control and are somewhat wary of the easy portability of records in digital format.  There is a lot of inertia among patients who are reluctant to change physicians to new ones who are not aware of their history and do not have direct access to their charts.  Those charts have an economic value to the providers who own them.

 

OREGON FINDS EXISTENCE OF PHYSICIAN/PATIENT RELATIONSHIP IN NEUROSURGEON’S TELEPHONE CONSULT WITH EMERGENCY ROOM.

 In the absence of a contract or direct physician/patient contact, when does a telephone consult ripen into a professional relationship?  The general rule seems to be that in the absence of some connection with the patient, merely listening to another physician’s description of a patient’s symptoms and offering a professional opinion regarding the proper course of treatment is not enough to imply a physician’s consent to a physician-patient relationship with the patient. The consulted physician is generally considered to be offering only informal assistance to a colleague. Se, e.g., Reynolds v. Decatur Memorial Hospital, 660 NE. 2d 235(1996).