Health Law Reporter Index-Summary

JOINT COMMISSION

– Center to identify and measure unsafe health care practices announced, 1207
– Disclosure of unanticipated medical outcomes, more hospitals and insurers requiring patients be informed but others dispute policy, 1321
– Disruptive physician standards compared to AMA conduct code, 1075
– Medical staff standard working draft under review, 1429
– Medicare nurse staffing requirements, claims related to HHS delegation of compliance oversight dismissed (D.D.C.), 102
– Sentinel Event Alert urges health care leaders to increase error prevention by taking zero-defect approach, 1185
– Staffing effectiveness requirements for hospitals and LTC facilities, comments sought, 807

JOINT REPLACEMENT

– Criminal conspiracy complaints against joint implant makers dismissed due to business practice reforms, 4 cases (D.N.J.), 457
– Financial incentives to surgeons alleged, court dismisses civil claims against Stryker Orthopoaedics and Smith & Nephew Corp. (D.N.J.), 212
– Kickbacks for use of companies' products, claims alleging Cal. unfair competition law violated by scheme allowed (N.D. Cal.), 1204
– Knee replacement surgery, radiologist not qualified as expert on orthopedic standard of care (Tex. App.), 1182
– Spoliation of evidence claim dismissed, no state cause of action for intentional or negligent loss of allegedly defective prosthesis (Ariz. Ct. App.), 1183

JUDGES

– Law of the case, judge in multidistrict litigation cannot vacate pre-transfer ruling, order to compel reinstated (3d Cir.), 1291
– Tex., reason for new trial order must be stated (Tex.), 950

JURISDICTION

– Abortion, clinics that provide medication but not surgical services may not pursue state claims challenging law requiring ASC licenses because duplicative of federal lawsuit (Mo. Ct. App.), 1127
– Anti-Kickback Act, Ill. physician trying to prevent partners from forcing him to liquidate his partnership interest did not establish federal cause of action (7th Cir.), 882
– Any willing provider law, providers may pursue claims against health insurers in Ark. state court (8th Cir.), 61
– Class Action Fairness Act, P.R. dental surgeons' claims handling suit against insurance companies should not have been remanded (1st Cir.), 1473
– Collateral estoppel does not bar claims of medical malpractice plaintiff against state and resident physician (Tenn.), 1343
– Corporate practice of medicine, Tex. law does not create private cause of action, dismissal of suit by emergency room doctors against hospital system upheld (Tex. App.), 1031
– EMTALA

– – Federal rules preempt state law on evaluating expert testimony (S.D. Tex.), 40
– – No basis for removal to federal court of state negligence suit (S.D. Miss.), 1449

– ERISA

– – Acute rehabilitative care delay allegedly led to injury, claim preempted (D.N.J.), 1214
– – Arbitration allowed, breach of contract claims brought against plan by provider are not preempted (9th Cir.), 1253
– – Authorization for treatment, state law claim not preempted (9th Cir.), 1208
– – Cal. emergency care payment law not preempted (Cal. Ct. App.), 633
– – Claims processor allegedly interfered with contractual relations, hospital's suit not preempted (E.D. Cal.), 187
– – Delayed or denied payments, state law claims by physicians against health insurers are preempted and must be litigated in federal court (S.D. Fla.), 157
– – Discretionary clauses barred

– – – Mich. insurance rules not preempted (6th Cir.), 400
– – – Mont. insurance commissioner prohibition aimed at industry and affects risk-pooling (9th Cir.), 1441

– – Employer's state law claim alleging insurer wrongfully terminated plan preempted (N.D.N.Y.), 663
– – Malpractice claims against physicians who were plan medical directors preempted (N.J. Super. Ct. App. Div.), 290
– – Mo. prompt payment law preempted (8th Cir.), 336
– – Negligent misrepresentation that knee treatment was in-network expense, state claim is not preempted (S.D. Ohio), 731
– – Out-of-network provider's incentives offered to patients allegedly interfered with managed care organization's relationship with in-network providers, claim is not preempted (D.N.J.), 556
– – Pay rate in provider agreement violation alleged, state law claims not preempted (5th Cir.), 1113
– – Physician's breach claims against former practice group including premature cancellation of health coverage not preempted, remanded to state court (W.D. Tenn.), 803
– – Pre-certification, hospital's state contract breach claim preempted (S.D. Ohio), 596
– – Privacy, claims that insurer negligently gave participant's address to ex-husband not preempted (C.D. Cal.), 695
– – Psychotherapy telephone consultations used billing code for face-to-face sessions, insurer's termination of plan participants on the basis of fraud was arbitrary, state law claims preempted (D.N.J.), 1051
– – Subrogation law preempted, insurer may recover payments without intervening in earlier litigation (W.D. Ky.), 292

– Failure to exhaust administrative remedies

See EXHAUSTION OF REMEDIES

– Federal Employees Health Benefits Act, state law claims not completely preempted and federal officer removal statute may not allow carriers to remove cases to federal court (U.S., rev grant), 1369
– Federal Nursing Home Reform Amendments may be enforced by private right of action under federal civil rights statute (3d Cir.), 895
– HIPAA, La. law improper disclosure claims must be tried in state court (W.D. La.), 1208
– Inactive doctor, state medical board has authority to discipline physician who did not seek to renew lapsed license (Iowa Ct. App.), 840
– Inconvenient forum

See VENUE

– Medicaid Act

– – Anti-lien provision, suit alleging N.H. agency violates law by seeking more than fair share of malpractice settlement allowed to proceed (D.N.H.), 700
– – Benefits termination due to residuary trust, judicial review available because claims “remedial” (10th Cir.), 99
– – Managed care mandated enrollment allegedly violates “freedom of choice” provision, claims of disabled children and others allowed (D. Haw.), 700; temporary restraining order denied, 1147; certified question to Haw. Sup. Ct. on contractor eligibility issue, 1373
– – Unsuccessful bidder may not sue state for alleged violations under federal civil rights statute (9th Cir.), 975

– Medicare Act, federal question authority not available (3d Cir.), 1057
– Natl. Labor Relations Bd. has exclusive authority over claim alleging illegal discharge for union organizing (Ky.), 126
– Necessary party, suit by subscribers seeking negotiated rates after exceeding annual benefit amounts cannot proceed without preferred providers, dismissed (W.D. Wash.), 800
– Planning for a Post-Levine World, BNA audioconference, 572
– Preservation of state law claims

See LEGISLATION, FEDERAL, HR 1346, S 540

– Removal to federal court unwarranted, attorneys' fees award affirmed (6th Cir.), 28
– Stark law claims of cardiologists and catheterization labs dismissed due to potential for indirect administrative challenge (D.D.C.), 517

JURY INSTRUCTIONS

– Georgia

– – “Hindsight” instruction flawed, defense verdict reversed for doctors who failed to diagnose Rocky Mountain Spotted Fever (Ga.), 877
– – Informed consent requirements do not apply to chiropractors (Ga.), 773

– Lost chance of survival instruction error, verdict for plaintiff reversed in suit alleging negligent failure to notify patient and doctors she had cancer (Tex.), 772
– Pa., “error of judgment” instruction no longer allowed (Pa. Super. Ct.), 1231
– Res ipsa loquitur

See CAUSATION

– Wash., wrongful death claim by parent dependent on adult child's services upheld, order reversing jury award overturned (Wash.), 1262

JURY TRIALS

– Bias voiced during selection process, verdict on behalf of child severely disabled following surgery to correct birth defect overturned (N.J.), 1028
– Call coverage, neurosurgeon who provided telephone advice established doctor-patient relationship as matter of law, jury verdict reversed and remanded (Or. Ct. App.), 1508
– Collateral estoppel does not bar claims of medical malpractice plaintiff against state and resident physician (Tenn.), 1343
– Damages

See DAMAGES

– Emergency cesarean section not performed, jury finds physician and hospital violated EMTALA by transferring woman whose infant died (N.D. Iowa), 373; jury verdict upheld but damages reduced, 668
– Emergency room charges for Kaiser members, trial ends in split verdict (Cal. Super. Ct.), 256
– Expert witnesses

See EXPERT WITNESSES

– HealthSouth, conviction of former official upheld, but former Ala. governor entitled to re-sentencing after one mail fraud count dropped (11th Cir.), 364; appeals by both defendants, 2 cases (U.S., rev sought), 1110
– Indigent immigrant with $2M medical bill flown to Guatemala, new trial sought in wake of jury verdict for defendant hospital in false imprisonment case (Fla. Cir. Ct.), 1093
– Informed consent, claim based on alleged lack of consent where there was failure to disclose treatment risks and alternatives allowed, verdict reinstated (Md.), 1027
– New trial order, judge must state reason (Tex.), 950
– Pulse oximeters maker failed to show competitor's bundling agreements had sufficient impact on market, jury award partially vacated (9th Cir.), 1467
– Res ipsa loquitur

See CAUSATION

– Seventh Amendment is not violated by requiring malpractice claimants against federally supported health center physicians to pursue remedies under Federal Tort Claims Act (6th Cir.), 1125
– Sexual assault of 6-year-old patient by hospital employee, jury verdict against insurer affirmed (Ark.), 301
– Vicarious liability of hospital, verdict stands despite signed consent form containing independent contractor disclaimer (Ill. App. Ct.), 806
– Workers' compensation, independent medical examination physician liable for failure to diagnose spinal cord injury of patient who died of prescription drug overdose (Ariz. Ct. App.), 567