[Source: Health Lawyers Weekly, Vol. VII, Issue 16 (April 24, 2009) - AHLA]
A physician could not maintain a breach of contract action against a hospital that revoked his privileges citing repeated concerns about unprofessional behavior that could harm patients, a federal trial court in Tennessee ruled.
The U.S. District Court for the Western District of Tennessee found the hospital was entitled to immunity under the Health Care Quality Immunity Act (HCQIA) for suspending and eventually revoking the physician’s privileges.
. . . .
In so holding, the court reviewed the standards for HCQIA immunity—i.e., that the professional review action was (1) taken in the reasonable belief that the action was in furtherance of quality healthcare; (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures, and (4) in the reasonable belief that the action was warranted by the facts—and held plaintiff could not rebut the presumption of immunity. See 42 U.S.C. § 11112(a).
Continue reading
Abu-Hatab v. Blunt Mem’l Hosp., Inc., No. 3:06-CV-436 (E.D. Tenn. Apr. 2, 2009)
Thursday, April 30, 2009
Monday, March 16, 2009
Update: Ninth Circuit Denied En Banc Review of No ERISA Preemption Ruling
[Source: Health Lawyers Weekly, March 13, 2009, Vol. VII Issue 10 (AHLA)]
The Ninth Circuit rejected March 9 the Golden Gate Restaurant Association’s (GGRA’s) petition for rehearing en banc of a three-judge panel decision that found the Employee Retirement Income Security Act (ERISA) does not preempt a San Francisco Ordinance setting new healthcare spending mandates for employers.
After a majority of the active Ninth Circuit judges declined to hear the closely watched case, GGRA said it would now finalize plans to move forward to the U.S. Supreme Court.
. . . .
Eight judges from the Ninth Circuit dissented from the majority’s decision not to grant en banc review.
. . . .
Specifically, the dissent disputed the panel’s conclusion that the Ordinance was distinguishable from the Maryland law at issue in Fielder because the Ordinance creates a municipally funded health alternative as opposed to a tax on employers that was not earmarked towards their employees’ insurance.
Continue reading.
Read the concurring and dissenting opinions in Golden Gate Restaurant Ass’n v. City and County of San Francisco, No. 07-17370 (9th Cir. Mar. 9, 2009).
The Ninth Circuit rejected March 9 the Golden Gate Restaurant Association’s (GGRA’s) petition for rehearing en banc of a three-judge panel decision that found the Employee Retirement Income Security Act (ERISA) does not preempt a San Francisco Ordinance setting new healthcare spending mandates for employers.
After a majority of the active Ninth Circuit judges declined to hear the closely watched case, GGRA said it would now finalize plans to move forward to the U.S. Supreme Court.
. . . .
Eight judges from the Ninth Circuit dissented from the majority’s decision not to grant en banc review.
. . . .
Specifically, the dissent disputed the panel’s conclusion that the Ordinance was distinguishable from the Maryland law at issue in Fielder because the Ordinance creates a municipally funded health alternative as opposed to a tax on employers that was not earmarked towards their employees’ insurance.
Continue reading.
Read the concurring and dissenting opinions in Golden Gate Restaurant Ass’n v. City and County of San Francisco, No. 07-17370 (9th Cir. Mar. 9, 2009).
Wednesday, January 28, 2009
Updates: Ninth Circuit's decision on the effect of ERISA on the San Fransico Healthcare Ordinance
Background issues here
"Ninth Circuit Finds No ERISA Preemption of San Francisco Ordinance Mandating Employer Healthcare Expenditures"
[October 3, 2008, Health Lawyers Weekly, Vol. VI, Issue 38, AHLA]
In a closely watched decision, the Ninth Circuit ruled September 30 that the Employee Retirement Income Security Act (ERISA) does not preempt a San Francisco Ordinance setting new healthcare spending mandates for employers.
Reversing a December 2007 lower court decision, a three-judge panel of the Ninth Circuit held the Ordinance's employer spending mandates did not establish an ERISA plan, nor did they have an impermissible “connection with” employers’ ERISA plans or make an impermissible “reference to” such plans.
View case
More
"DOL Argues ERISA Preempts San Francisco Ordinance Mandating Employer Healthcare Expenditures"
[April 11, 2008, Health Lawyers Weekly, Vol. VI, Issue 14, AHLA]
The Department of Labor (DOL) has submitted an amicus curiae brief to the Ninth Circuit arguing a lower court correctly found the Employee Retirement Income Security Act (ERISA) preempts a San Francisco ordinance setting new healthcare spending mandates for employers.
According to the brief, ERISA preempts the employer spending requirements in the San Francisco Health Care Security Ordinance, which went into effect January 1, 2008 for large employers, because “they mandate employee benefit structures or their administration” and “interfere with uniform plan administration.”
In its brief, DOL argues the Ordinance “purports to directly regulate the provision of health benefits by private employers to their employees and, in this manner, governs precisely the same relationships that Congress subjected to exclusive federal regulation under ERISA.”
View the brief.
More
"Justice Kennedy Refuses to Prevent San Francisco Ordinance Mandating Employer Healthcare Expenditures from Taking Effect During Appeal"
[February 29, 2008, Health Lawyers Weekly, Vol. VI, Issue 8, AHLA]
Justice Anthony Kennedy rejected February 21 an application by the Golden Gate Restaurant Association (GGRA) asking him to prevent a San Francisco ordinance setting new healthcare spending mandates for employers from taking effect while the challenge to the ordinance is under appeal.
More
"Ninth Circuit Finds No ERISA Preemption of San Francisco Ordinance Mandating Employer Healthcare Expenditures"
[October 3, 2008, Health Lawyers Weekly, Vol. VI, Issue 38, AHLA]
In a closely watched decision, the Ninth Circuit ruled September 30 that the Employee Retirement Income Security Act (ERISA) does not preempt a San Francisco Ordinance setting new healthcare spending mandates for employers.
Reversing a December 2007 lower court decision, a three-judge panel of the Ninth Circuit held the Ordinance's employer spending mandates did not establish an ERISA plan, nor did they have an impermissible “connection with” employers’ ERISA plans or make an impermissible “reference to” such plans.
View case
More
"DOL Argues ERISA Preempts San Francisco Ordinance Mandating Employer Healthcare Expenditures"
[April 11, 2008, Health Lawyers Weekly, Vol. VI, Issue 14, AHLA]
The Department of Labor (DOL) has submitted an amicus curiae brief to the Ninth Circuit arguing a lower court correctly found the Employee Retirement Income Security Act (ERISA) preempts a San Francisco ordinance setting new healthcare spending mandates for employers.
According to the brief, ERISA preempts the employer spending requirements in the San Francisco Health Care Security Ordinance, which went into effect January 1, 2008 for large employers, because “they mandate employee benefit structures or their administration” and “interfere with uniform plan administration.”
In its brief, DOL argues the Ordinance “purports to directly regulate the provision of health benefits by private employers to their employees and, in this manner, governs precisely the same relationships that Congress subjected to exclusive federal regulation under ERISA.”
View the brief.
More
"Justice Kennedy Refuses to Prevent San Francisco Ordinance Mandating Employer Healthcare Expenditures from Taking Effect During Appeal"
[February 29, 2008, Health Lawyers Weekly, Vol. VI, Issue 8, AHLA]
Justice Anthony Kennedy rejected February 21 an application by the Golden Gate Restaurant Association (GGRA) asking him to prevent a San Francisco ordinance setting new healthcare spending mandates for employers from taking effect while the challenge to the ordinance is under appeal.
More
Wednesday, July 2, 2008
TN Appeals Court Holds that Tennessee Peer Review Law Applies to the "Admissibility" of Peer Review-Related Information
Roy v. City of Harriman, E2007-00785-COA-R3-CV (Tenn. Ct. App. June 30, 2008)
In a recent Tennessee Court of Appeals case, the court held that the Tennessee Peer Review Law creates a privilege that bars not only the discovery of peer review-related information, but also the use of such information.
This cause of action arises out of statements made by Dr. William E. Bennett to PHP Companies, Inc. (“PHP”), a health insurance company, regarding Dr. Francis Roy. Dr. Roy alleges that, in connection with PHP’s review of Dr. Roy’s application to become an approved PHP provider, Dr. Bennett made written statements that reflected poorly on Dr. Roy’s work history and qualifications. Dr. Roy claims that these statements were false and defamatory. In response to Dr. Roy’s complaint, Dr. Bennett filed a motion for summary judgment, contending, among other things, that the document containing the allegedly defamatory statements is privileged and inadmissible under the Tennessee Peer Review Law, Tenn. Code Ann. § 63-6-219 (2004). The court granted Dr. Bennett’s motion. The Tennessee Court of Appeals affirmed.
In considering whether the Peer Review Law renders "information . . . furnished to" a peer review committee inadmissible, or merely not subject to discovery, the court held: "[T]he Peer Review Law creates a privilege that bars the discovery or use of '[a]ll information, interviews, incident or other reports, statements, memoranda or other data furnished to any committee as defined in [the statute], and any findings, conclusions or recommendations resulting from the proceedings of such committee,' unless the information in question falls under an exception to the privilege." (emphasis in original) (citing T.C.A. § 63-6-219(e)).
The court also held that the "regular course of business" exception to the peer review privilege "refer[s] to documents prepared in the 'regular course of business' independent of peer review processes." (emphasis in original).
In a separate concurring opinion, one judge argued that the majority's interpretation of the Peer Review Law as prohibiting the use of peer review-related information, while correct, nonetheless creates "an irreconcilable conflict" in the statute. Section (d)(2) of the statute does not extend immunity to individuals submitting false information to a peer review committee if such individuals had actual knowledge of its falsity. The judge argued that, by prohbiting the discovery and use of peer-review related information, there is no way for a plaintiff to prove that an individual knowingly provided false information to a peer review committee. "I am at a loss as to how any potential plaintiff could proceed against an individual who is not immune from liability because he knowingly provided false information to a Peer Review Committee without being able to discover what was said to the Peer Reivew Committee and then being able to have what was said admitted into evidence." The judge concluded: "The end result is that Tenn. Code Ann. § 63-6-219(d)(2) is effectively deleted from the statute . . . ."
Opinion
Concurring Opinion
In a recent Tennessee Court of Appeals case, the court held that the Tennessee Peer Review Law creates a privilege that bars not only the discovery of peer review-related information, but also the use of such information.
This cause of action arises out of statements made by Dr. William E. Bennett to PHP Companies, Inc. (“PHP”), a health insurance company, regarding Dr. Francis Roy. Dr. Roy alleges that, in connection with PHP’s review of Dr. Roy’s application to become an approved PHP provider, Dr. Bennett made written statements that reflected poorly on Dr. Roy’s work history and qualifications. Dr. Roy claims that these statements were false and defamatory. In response to Dr. Roy’s complaint, Dr. Bennett filed a motion for summary judgment, contending, among other things, that the document containing the allegedly defamatory statements is privileged and inadmissible under the Tennessee Peer Review Law, Tenn. Code Ann. § 63-6-219 (2004). The court granted Dr. Bennett’s motion. The Tennessee Court of Appeals affirmed.
In considering whether the Peer Review Law renders "information . . . furnished to" a peer review committee inadmissible, or merely not subject to discovery, the court held: "[T]he Peer Review Law creates a privilege that bars the discovery or use of '[a]ll information, interviews, incident or other reports, statements, memoranda or other data furnished to any committee as defined in [the statute], and any findings, conclusions or recommendations resulting from the proceedings of such committee,' unless the information in question falls under an exception to the privilege." (emphasis in original) (citing T.C.A. § 63-6-219(e)).
The court also held that the "regular course of business" exception to the peer review privilege "refer[s] to documents prepared in the 'regular course of business' independent of peer review processes." (emphasis in original).
In a separate concurring opinion, one judge argued that the majority's interpretation of the Peer Review Law as prohibiting the use of peer review-related information, while correct, nonetheless creates "an irreconcilable conflict" in the statute. Section (d)(2) of the statute does not extend immunity to individuals submitting false information to a peer review committee if such individuals had actual knowledge of its falsity. The judge argued that, by prohbiting the discovery and use of peer-review related information, there is no way for a plaintiff to prove that an individual knowingly provided false information to a peer review committee. "I am at a loss as to how any potential plaintiff could proceed against an individual who is not immune from liability because he knowingly provided false information to a Peer Review Committee without being able to discover what was said to the Peer Reivew Committee and then being able to have what was said admitted into evidence." The judge concluded: "The end result is that Tenn. Code Ann. § 63-6-219(d)(2) is effectively deleted from the statute . . . ."
Opinion
Concurring Opinion
Monday, June 30, 2008
Plaintiff in Medical Malpractice Action Must File Certificate of Good Faith
Ch. 919, 2008 Tenn. Pub. Acts (effective Oct. 1, 2008)
TN Public Chapter No. 919 amended Title 29, Chapter 26, Part 1 of the Tennessee Code Annotated to require plaintiffs or plaintiff's counsel to file a Certificate of Good Faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required by § 29-26-115. The Certificate of Good Faith shall state that plaintiff or plaintiff's counsel has consulted with one or more experts who have provided signed written statements confirming their belief that there is a good faith basis to maintain the action consistent with the Tennessee Medical Malpractice Act. Failure to comply with these requirements shall, upon motion, make the action subject to dismissal with prejudice.
Defendant or defendant's counsel must also file a Certificate of Good Faith within 30 days after alleging in an answer or amended answer that a non-party is at fault for the plaintiff's injuries. Failure to comply shall, upon motion, make such allegations subject to being stricken with prejudice.
Pub. Ch. No.919 also requires a plaintiff in a medical malpractice action to give written notice of potential claims to each health care provider against whom such potential claims are being made at least 60 days before the filing of complaints based upon medical malpractice in any Tennessee court.
Ch. 919
TN Public Chapter No. 919 amended Title 29, Chapter 26, Part 1 of the Tennessee Code Annotated to require plaintiffs or plaintiff's counsel to file a Certificate of Good Faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required by § 29-26-115. The Certificate of Good Faith shall state that plaintiff or plaintiff's counsel has consulted with one or more experts who have provided signed written statements confirming their belief that there is a good faith basis to maintain the action consistent with the Tennessee Medical Malpractice Act. Failure to comply with these requirements shall, upon motion, make the action subject to dismissal with prejudice.
Defendant or defendant's counsel must also file a Certificate of Good Faith within 30 days after alleging in an answer or amended answer that a non-party is at fault for the plaintiff's injuries. Failure to comply shall, upon motion, make such allegations subject to being stricken with prejudice.
Pub. Ch. No.919 also requires a plaintiff in a medical malpractice action to give written notice of potential claims to each health care provider against whom such potential claims are being made at least 60 days before the filing of complaints based upon medical malpractice in any Tennessee court.
Ch. 919
Sunday, June 29, 2008
U.S. Court In Tennessee Upholds Exclusion From Participation In Federal Healthcare Programs Applied To “Convicted” Physician
[Source: Health Lawyers Weekly, Vol. 6, Iss. 25, June 27, 2008 - AHLA]
The Department of Health and Human Services Secretary correctly determined that a physician who pled nolo contendere on charges of attempting to defraud TennCare, Tennessee’s Medicaid managed care program, was “convicted” of a criminal offense under applicable federal statutes and therefore subject to a mandatory five-year exclusion from participation in Medicare, Medicaid, and all other federal healthcare programs, a federal district court ruled June18.
. . . .
Physician excluded under 42 U.S.C. § 1320a-7: Among other categories enumerated in that statute, the Secretary is authorized to exclude for a period of not less than five years, “any individual or entity that have been convicted of a criminal offense related to the delivery of an item or service under any state health care program.”
Under another provision of the statute, “convicted,” is further defined as a “judgment of conviction . . . regardless of whether there is an appeal pending or whether the judgment . . . relating to criminal conduct has been expunged,” as well as a “plea of guilty or nolo contendere” accepted by a court, or evidence that an individual or entity has entered into participation in a first offender, deferred adjudication, or other program where judgment of conviction has been withheld.
Continue reading
Gupton v. Leavitt, No. 3:07-cv-185 (E.D. Tenn. June 18, 2008).
The Department of Health and Human Services Secretary correctly determined that a physician who pled nolo contendere on charges of attempting to defraud TennCare, Tennessee’s Medicaid managed care program, was “convicted” of a criminal offense under applicable federal statutes and therefore subject to a mandatory five-year exclusion from participation in Medicare, Medicaid, and all other federal healthcare programs, a federal district court ruled June18.
. . . .
Physician excluded under 42 U.S.C. § 1320a-7: Among other categories enumerated in that statute, the Secretary is authorized to exclude for a period of not less than five years, “any individual or entity that have been convicted of a criminal offense related to the delivery of an item or service under any state health care program.”
Under another provision of the statute, “convicted,” is further defined as a “judgment of conviction . . . regardless of whether there is an appeal pending or whether the judgment . . . relating to criminal conduct has been expunged,” as well as a “plea of guilty or nolo contendere” accepted by a court, or evidence that an individual or entity has entered into participation in a first offender, deferred adjudication, or other program where judgment of conviction has been withheld.
Continue reading
Gupton v. Leavitt, No. 3:07-cv-185 (E.D. Tenn. June 18, 2008).
Saturday, June 14, 2008
U.S. Supreme Court Holds False Claims Act Requires Intent to Defraud Government
[Source: Health Lawyers Weekly, June 13, 2008, Vol. 6, Iss. 23 - AHLA]
The U.S. Supreme Court unanimously held June 9 that the False Claims Act (FCA) requires proof that the defendant “intended that the false statement be material to the Government’s decision to pay or approve the false claim.”
The opinion, authored by Justice Samuel Alito, reversed a Sixth Circuit decision that held it was sufficient under the FCA for a plaintiff to prove merely that a false statement resulted in payment from the government.
According to the Court, “the Sixth Circuit’s interpretation of § 3729(a)(2) [of the FCA] impermissibly deviates from the statute’s language, which requires the defendant to make a false statement ‘to get’ a false or fraudulent claim ‘paid or approved by the Government.’”
Thus, a defendant must intend for the government to pay the claim, the Court held.
“Eliminating this element of intent would expand the FCA well beyond its intended role of combating “fraud against the Government,’” Alito wrote.
. . . . .
See also Waller Lansden bulletin
Allison Engine Co. v. United States ex rel. Sanders, No. 07-214 (U.S. June 9, 2008).
The U.S. Supreme Court unanimously held June 9 that the False Claims Act (FCA) requires proof that the defendant “intended that the false statement be material to the Government’s decision to pay or approve the false claim.”
The opinion, authored by Justice Samuel Alito, reversed a Sixth Circuit decision that held it was sufficient under the FCA for a plaintiff to prove merely that a false statement resulted in payment from the government.
According to the Court, “the Sixth Circuit’s interpretation of § 3729(a)(2) [of the FCA] impermissibly deviates from the statute’s language, which requires the defendant to make a false statement ‘to get’ a false or fraudulent claim ‘paid or approved by the Government.’”
Thus, a defendant must intend for the government to pay the claim, the Court held.
“Eliminating this element of intent would expand the FCA well beyond its intended role of combating “fraud against the Government,’” Alito wrote.
. . . . .
See also Waller Lansden bulletin
Allison Engine Co. v. United States ex rel. Sanders, No. 07-214 (U.S. June 9, 2008).
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