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
Monday, June 30, 2008
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.
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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).
Tuesday, June 3, 2008
In medical malpractice action, TN Court of Appeals addresses whether hospital is vicariously liable for the acts of emergency room physician
Thomas v. Oldfield, No. M2007-01693-COA-R3-CV (filed June 2, 2008)
The issue on appeal in this medical malpractice action is whether the hospital is vicariously liable for the acts or omissions of an emergency room physician. The trial court summarily dismissed all claims against the hospital finding that it was not vicariously liable for the conduct of the emergency room physician because he was neither its actual or apparent agent. We find the trial court correctly granted summary judgment to the hospital on the issue of actual agency because there are no material facts in dispute and the hospital is entitled to summary judgment on the issue of actual agency as a matter of law. We, however, find that material facts are in dispute concerning whether the hospital held itself out to the public as providing medical services; whether the plaintiff looked to the hospital rather than to the individual physician to perform those services; whether the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee; and, if so, whether the hospital provided meaningful notice to the plaintiff at the time of admission that the emergency room physician was not its agent. Accordingly, we have determined the hospital was not entitled to summary judgment on the issue of apparent agency. Therefore, we remand to the trial court the issue of apparent agency for further proceedings consistent with this opinion.
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[Note: This case references Boren v. Weeks (May 6, 2008), where the Tennessee Supreme Court adopted the rule of apparetn agency from Restatement (Second) of Torts § 429 - see below]
The issue on appeal in this medical malpractice action is whether the hospital is vicariously liable for the acts or omissions of an emergency room physician. The trial court summarily dismissed all claims against the hospital finding that it was not vicariously liable for the conduct of the emergency room physician because he was neither its actual or apparent agent. We find the trial court correctly granted summary judgment to the hospital on the issue of actual agency because there are no material facts in dispute and the hospital is entitled to summary judgment on the issue of actual agency as a matter of law. We, however, find that material facts are in dispute concerning whether the hospital held itself out to the public as providing medical services; whether the plaintiff looked to the hospital rather than to the individual physician to perform those services; whether the patient accepted those services in the reasonable belief that the services were provided by the hospital or a hospital employee; and, if so, whether the hospital provided meaningful notice to the plaintiff at the time of admission that the emergency room physician was not its agent. Accordingly, we have determined the hospital was not entitled to summary judgment on the issue of apparent agency. Therefore, we remand to the trial court the issue of apparent agency for further proceedings consistent with this opinion.
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[Note: This case references Boren v. Weeks (May 6, 2008), where the Tennessee Supreme Court adopted the rule of apparetn agency from Restatement (Second) of Torts § 429 - see below]
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