The Tennessee Court of Appeals recently found that a hospital's bylaws were part of a physician's employment contract. In James C. Gekas, M.D. v. Seton Corporation, d/b/a Baptist Hospital, the plaintiff physician sued the defendant hospital for breach of contract after the hospital declined to promote him to a permanent position on its medical staff. He claimed that the hospital’s bylaws were part of his employment contract, and that the manner in which the hospital reached its decision violated those bylaws. The trial court granted summary judgment to the hospital. We agree that the bylaws formed part of his contract, but since the record clearly shows that the hospital substantially complied with its bylaws we affirm the trial court.
Reviewing an earlier Tennessee Supreme Court decision, the court noted: "The court concluded that a hospital’s bylaws have become, as a matter of law, an integral part of the contractual relationship between the hospital and the members of its medical staff. Thus, a member of the hospital staff has a contractual right to insist that the hospital follow its own bylaws. Lewisburg Community Hospital v. Alfredson, 805 S.W.2d 756, 761 (Tenn. 1991)."
James C. Gekas, M.D. v. Seton Corporation, d/b/a Baptist Hospital, M2006-00454-COA-R3-CV View
Friday, April 18, 2008
Sunday, April 13, 2008
Federal Preemption: The Drug and Device Trilogy
"Federal Preemption: The Drug and Device Trilogy" by J. Carter Thompson, Jr., Stephanie M. Rippee, and Amy L. Champagne, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
[Source: Health Lawyers Weekly, Vol. 6, Iss. 11 - AHLA]
[Source: Health Lawyers Weekly, Vol. 6, Iss. 11 - AHLA]
Lawyers offer guidance for terminating physician-patient relationship.
[Source: Health and Life Sciences Law Daily, March 24, 2008 - AHLA]
The Boston Business Journal (3/21, van der Pool) reported that "healthcare lawyers...say that in recent years they have fielded more inquiries from doctors and healthcare organizations about the best way to terminate a doctor-patient relationship." Since physicians are "under ethical and legal obligations to provide medical services for as long as the patient wants," there is "a laundry list of steps needs to be taken" in order "[f]or a doctor to cut off that relationship and not be successfully sued with an abandonment claim." First of all, there must "be a legitimate reason" for termination, "which could include everything from a patient refusing treatment and repeatedly missing appointments to threats of violence." After this, "a letter should be sent to the patient via certified mail with a detailed explanation of the termination and a note that services will be continued for 30 days, to allow the patient to find another doctor."
The Boston Business Journal (3/21, van der Pool) reported that "healthcare lawyers...say that in recent years they have fielded more inquiries from doctors and healthcare organizations about the best way to terminate a doctor-patient relationship." Since physicians are "under ethical and legal obligations to provide medical services for as long as the patient wants," there is "a laundry list of steps needs to be taken" in order "[f]or a doctor to cut off that relationship and not be successfully sued with an abandonment claim." First of all, there must "be a legitimate reason" for termination, "which could include everything from a patient refusing treatment and repeatedly missing appointments to threats of violence." After this, "a letter should be sent to the patient via certified mail with a detailed explanation of the termination and a note that services will be continued for 30 days, to allow the patient to find another doctor."
Law Professor Questions Constitutionality of Health Insurance Mandates
["Not So Fast on the Health Insurance Mandates" by Karl Manheim, Professor of Law, Loyola Law School Los Angeles, and Jamie Court, Chairman of the Santa Monica-based Consumer Watchdog - The Los Angeles Times, March 24, 2008]
Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.
The closest we come is when government imposes a condition on the grant of a discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary -- you don't have to drive a car or build a house. Nor do you have a constitutional right to do so.
But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits
Continue reading
Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.
The closest we come is when government imposes a condition on the grant of a discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary -- you don't have to drive a car or build a house. Nor do you have a constitutional right to do so.
But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits
Continue reading
U.S. Court In Tennessee Finds Hospital Not Liable Under EMTALA For Transferring Inpatient Who Developed Emergency Condition
[Source: Health Lawyers Weekly, Vol. 6, Iss. 13 - AHLA]
A Tennessee hospital is not liable under the Emergency Medical Treatment and Labor Act (EMTALA) for transferring a patient who developed an emergency condition 17 days after she was admitted for hemodialysis to treat her kidney disease, a federal district court in that state ruled March 24.
The U.S. District Court for the Eastern District of Tennessee granted summary judgment in favor of the hospital, relying primarily on 42 C.F.R. § 489.24(a)(1)(ii), which states that once a hospital “ admits [an] individual as an inpatient [in good faith] for further treatment, the hospital’s obligation under [EMTALA] ends.”
Continue reading
Anderson v. Kindred Hosp., No. 1:05-cv-294 (E.D. Tenn. Mar. 24, 2008).
A Tennessee hospital is not liable under the Emergency Medical Treatment and Labor Act (EMTALA) for transferring a patient who developed an emergency condition 17 days after she was admitted for hemodialysis to treat her kidney disease, a federal district court in that state ruled March 24.
The U.S. District Court for the Eastern District of Tennessee granted summary judgment in favor of the hospital, relying primarily on 42 C.F.R. § 489.24(a)(1)(ii), which states that once a hospital “ admits [an] individual as an inpatient [in good faith] for further treatment, the hospital’s obligation under [EMTALA] ends.”
Continue reading
Anderson v. Kindred Hosp., No. 1:05-cv-294 (E.D. Tenn. Mar. 24, 2008).
CMS Issues Final E-Prescribing Rule
[Source: Health Lawyers Weekly, Vol 6, Iss. 13 - AHLA)
The Centers for Medicare and Medicaid Services (CMS) issued a final rule April 2 establishing Part D e-prescribing standards for formulary and benefits, medication history, fill status notification, and identification of individual healthcare providers.
The new standards apply to all Part D sponsors, as well as to prescribers and dispensers that electronically transmit prescriptions and prescription-related information about Part D covered drugs prescribed for Part D eligible individuals.
Continue reading
The new e-prescribing standards will be effective on April 1, 2009.
Read the rule.
The Centers for Medicare and Medicaid Services (CMS) issued a final rule April 2 establishing Part D e-prescribing standards for formulary and benefits, medication history, fill status notification, and identification of individual healthcare providers.
The new standards apply to all Part D sponsors, as well as to prescribers and dispensers that electronically transmit prescriptions and prescription-related information about Part D covered drugs prescribed for Part D eligible individuals.
Continue reading
The new e-prescribing standards will be effective on April 1, 2009.
Read the rule.
Tennessee nursing homes pushing for lawsuit limits.
[Source: Health and Life Sciences Law Daily, April 7, 2008 - AHLA]
The Tennessean (4/6, Emery) reported that "the nursing home industry as a whole is fighting to impose new limits" on lawsuits related to negligence. In Tennessee, the Nursing Home Patient Protection Act of 2008, a bill "under discussion in the state Legislature," would "keep many lawsuits out of courts altogether, make the cases more difficult to pursue, and cap damages." Proponents of the measure "suggest that nursing homes are drowning under a flood of litigation from out-of-state lawyers, while critics accuse the industry of cutting off the only recourse for victims of negligence and greed." Gerald Coggin, a senior vice president for National HealthCare Corp., "said that while other states have put limitations on lawsuits, out-of-state law firms have migrated to Tennessee in search of clients, creating a 'huge increase' in lawsuits." Coggin added, "It's driven up the cost of defending and litigating these lawsuits, and taken away (money) that ought to be going into patient care."
The Tennessean (4/6, Emery) reported that "the nursing home industry as a whole is fighting to impose new limits" on lawsuits related to negligence. In Tennessee, the Nursing Home Patient Protection Act of 2008, a bill "under discussion in the state Legislature," would "keep many lawsuits out of courts altogether, make the cases more difficult to pursue, and cap damages." Proponents of the measure "suggest that nursing homes are drowning under a flood of litigation from out-of-state lawyers, while critics accuse the industry of cutting off the only recourse for victims of negligence and greed." Gerald Coggin, a senior vice president for National HealthCare Corp., "said that while other states have put limitations on lawsuits, out-of-state law firms have migrated to Tennessee in search of clients, creating a 'huge increase' in lawsuits." Coggin added, "It's driven up the cost of defending and litigating these lawsuits, and taken away (money) that ought to be going into patient care."
Federal appeals court rules in favor of drugmakers in drug-label preemption case
[Source: Health and Life Sciences Law Daily, April 9, 2008 - AHLA]
The Legal Intelligencer (4/9, Duffy) reports that in a 2-to-1 decision (pdf) issued Tuesday, the 3rd U.S. Circuit Court of Appeals in Philadelphia, Pa., "ruled that the makers of Paxil (paroxetine) and Zoloft (sertraline) cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration (FDA) has explicitly refused to order such warnings." In the opinion, Judge Dolores K. Sloviter, writing for the majority, "said the FDA has 'actively monitored' the possible risk of suicide from taking the class of antidepressant drugs known as selective serotonin re-uptake inhibitors, or SSRIs, for two decades, and concluded that the suicide warnings demanded by plaintiffs 'are without scientific basis and would therefore be false and misleading.'"
"While narrowly written, the decision was a clear victory for drugmakers and Bush administration officials," who argue that scientists at the FDA, "not lay juries," should decide drug-labels information, the Philadelphia Inquirer (4/9, Stark) adds. However, "[l]awyers for the plaintiffs countered that the FDA was outgunned and poorly funded at best and that lawsuits represented an important check on the system and a last attempt for injured victims to get redress." Writing in dissent, "Judge Thomas L. Ambro argued that for 75 years, the FDA has viewed state suits 'as complementary to its warning regulations. Only for the last two years has it claimed otherwise.'" The Inquirer notes that the "issue could come to a head in October, when the U.S. Supreme Court is scheduled to hear Wyeth v. Levine, another dispute over the adequacy of a drug label." Some legal experts say the "case could determine the scope of future pharmaceutical litigation unless Congress intervened."
The Legal Intelligencer (4/9, Duffy) reports that in a 2-to-1 decision (pdf) issued Tuesday, the 3rd U.S. Circuit Court of Appeals in Philadelphia, Pa., "ruled that the makers of Paxil (paroxetine) and Zoloft (sertraline) cannot be sued for failing to warn of a risk of suicide because the Food & Drug Administration (FDA) has explicitly refused to order such warnings." In the opinion, Judge Dolores K. Sloviter, writing for the majority, "said the FDA has 'actively monitored' the possible risk of suicide from taking the class of antidepressant drugs known as selective serotonin re-uptake inhibitors, or SSRIs, for two decades, and concluded that the suicide warnings demanded by plaintiffs 'are without scientific basis and would therefore be false and misleading.'"
"While narrowly written, the decision was a clear victory for drugmakers and Bush administration officials," who argue that scientists at the FDA, "not lay juries," should decide drug-labels information, the Philadelphia Inquirer (4/9, Stark) adds. However, "[l]awyers for the plaintiffs countered that the FDA was outgunned and poorly funded at best and that lawsuits represented an important check on the system and a last attempt for injured victims to get redress." Writing in dissent, "Judge Thomas L. Ambro argued that for 75 years, the FDA has viewed state suits 'as complementary to its warning regulations. Only for the last two years has it claimed otherwise.'" The Inquirer notes that the "issue could come to a head in October, when the U.S. Supreme Court is scheduled to hear Wyeth v. Levine, another dispute over the adequacy of a drug label." Some legal experts say the "case could determine the scope of future pharmaceutical litigation unless Congress intervened."
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