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Archive for the ‘Medical & Health Care’ Category

Is Wellness Activity Participation Compensable?

Posted on: September 25th, 2018

By: Joyce Mocek

The Department of Labor (DOL) recently issued an opinion letter on whether employees must be compensated under the Fair Labor Standards Act (FLSA) for the time they spend participating in wellness activities.   In this inquiry, the employer advised the DOL that it allowed its employees to participate in wellness programs including “biometric screening,” (ie cholesterol levels, blood pressure and nicotine usage screening), during and outside of regular work hours.  The screening information could result in a decrease in the employee’s health insurance deductible.  The screening was not related to the employee’s job, there were no restrictions on the time an employee could participate in the events, and participation was not required by the employer.

In its opinion letter, the DOL noted the employer received no financial benefit as a result of the employee participation in the activities, and the employee’s voluntary participation predominantly benefited the employee.  The employer did not require the employee to perform any job related duties while they were participating in the activities.  Thus, since the activities predominantly benefited the employee, the DOL opined that the time the employees spent participating in the wellness program did not constitute worktime under the FLSA.  Further, since the employee was relieved of all duties, and not restricted in the amount of time they could participate in the activities, the time spent was considered non-compensable “off  duty” time.

Employers with wellness programs should review their policies concerning such programs, to ensure they follow the guidance recently outlined by the DOL in this opinion letter to avoid potential FLSA issues.

If you have any questions or would like more information, please contact Joyce Mocek at [email protected].

If You Don’t Have Anything Nice To Say….You Probably Shouldn’t Post It!

Posted on: August 22nd, 2018

By: Shaun DaughertySamantha Skolnick

Mothers all over the world have admonished their children: “if you don’t have anything nice to say, don’t say anything at all.”  It may lose something when translated into some obscure dialects, but the sentiment was still there.  Now that we live in the age of technology, it appears that the old saying could use a facelift.  “If you don’t have anything nice to say, you should not type it anywhere on the internet.”  That is especially true if you are criticizing doctors and hospitals.

A wave of litigation has been emerging involving doctors and hospitals, but in these instances, they are not the targets, they are the plaintiffs.  Doctors and hospitals are starting to sue their patients for negative reviews on social media. The most recent example earned itself an article in USA Today where retired Colonel David Antoon had to pay $100 to settle felony charges for emailing his surgeon articles that the doctor found threatening as well as posting a list on Yelp of the surgeries the urologist had scheduled for the same time as his own.  Antoon alleged that his surgery left him incontinent and impotent and he had tried to appeal to the court of public opinion.

In other news, a Cleveland physician sued a former patient for defamation after the negative internet reviews of her doctor reached the level of deliberately false and defamatory statements. The case may be headed to trial in August. Close by, a Michigan hospital sued three relatives for Facebook posts and picketing which amounted to defamation, tortious interference and invasion of privacy. The family claimed that the hospital had mistreated their deceased grandmother.

We live in a country that ensures freedom of speech, and that right is exercised more than ever with the advent of social media and an ever-growing audience of participants.  However, there can be consequences if the speech is inaccurate or defamatory in nature.  While some attorneys, like Steve Hyman, cite the law in stating that “[t]ruth is an absolute defense. If you do that and don’t make a broader conclusion that they’re running a scam factory then you can write a truthful review that ‘I had a bad time with this doctor.’”  Other commentators, like Evan Mascagni from the Public Participation Project, tout avoiding broad generalizations, “If you’re going to make a factual assertion, be able to back that up and prove that fact.” That is defense against defamation claims 101.

The world of non-confrontational criticism on social medial makes it easy and tempting to post an emotionally fueled rant.  But beware!  You want to avoid a situation like that of Michelle Levine who has spent nearly $20,000 defending herself against a suit filed by her Gynecologist over defamation, libel, and emotional distress. The 24-hour rule is still a viable alternative to hitting “send” or “post.”  Type it out, let it sit and ruminate for a bit, and then decided if you are going to post the negative comments for the world to see.  Some opinions are worth sharing, or you may decide…. don’t say anything at all.

If you have any questions or would like more information please contact Shaun Daugherty at [email protected] or Samantha Skolnick at [email protected].

Georgia Prescription Drug Monitoring Program – The Last Deadline Approaches

Posted on: June 27th, 2018

By: Shaun Daugherty

For those of you that have not been residing off planet these last few years, you know that there is a lot of coverage of the opioid “crisis” across the United States.  Many states have taken steps to try and help monitor and control the controlled substances that are moving from prescription pad to pharmacy to patient.  Georgia is no different.

Several years ago, the Georgia legislature passed the bill that established the Georgia Prescription Monitoring Program (PDMP).  It is an electronic database that is used to track the prescribing and dispensing of controlled substances per patient.  In 2017, the Legislature tweaked some of the requirements and added some deadlines for the same.

As of July 1, 2017, all Georgia retail pharmacies and dispensing prescribers were required to update the PDMP at least every 24 hours.  At the time there was no requirement on the pharmacy or prescriber to obtain any information from the database or the patients who were receiving the medications, they were just required to update the information about the medications being put into circulation.

On January 1, 2018, each Georgia prescriber with a DEA number was required to be registered with the PDMP.  If you have not done so, please do so immediately at https://georgia.pmpaware.net/login.  Any new Georgia prescriber that obtains a DEA number must register with the PDMP within 30 days of obtaining said number.  Between January 1 and May 31 of 2018, random testing of the PDMP occurred to assure that it was accessible 99.5% of the time.  Data from this random testing has not yet been published.

Now the upcoming deadline:

Effective July 1, 2018, any person initially prescribing a schedule II opioid or any benzodiazepine shall seek a review of the patient’s PDMP information at the time of the initial prescription and then at least once every 90 days thereafter.  However, this requirement does not apply if the: 1) prescription is for no more than 3 days/26 pills; 2) the patient is an inpatient in a hospital, LTCF, hospice, personal care home, etc. and uses the medicine on premises; 3) patient had out-patient surgery and the prescription is for no more than 10 days/40 pills; 4) patient is terminally ill and in an outpatient hospice; or 5) if the patient is being treated for cancer.

If you are not exempt, then the check of the PDMP must be documented in the patient’s records.  There is not a requirement that the information be printed from the database and placed in the patient’s records, but that would seem to be easy proof if anyone came to ensure that the requirements were being met.  All prescribers of opioids are required to provide patients information about the risks of using opioids and their proper disposal as well.  A handout given to each patient with this required information would be easy to create, distribute and post in the office for patient education and to fulfil this requirement.

Any prescriber found violating these requirements will be held administratively liable to their professional licensing board.  That is the same licensing board that has the power to sanction, limit, suspend or revoke your professional license.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

Ordinarily, Is It Professional Negligence? Georgia Supreme Court Thinks So In $22 Million Reversal

Posted on: April 17th, 2018

By: Shaun Daugherty

The Georgia appellate courts have addressed the issues between claims of ordinary and professional negligence in medical malpractice cases for a number of years.  The standards for liability are distinctly different, but in certain factual scenarios there may be a fine line drawn between the two.  The Georgia Supreme Court made a clear distinction on the issue last month in reversing a $22 million dollar compensatory verdict awarded in Southeastern Pain Specialists v. Brown.  This was after the same verdict had been affirmed by the Court of Appeals that found no error in the trial court charging the jury on both ordinary and professional negligence.

The Georgia Supreme Court had some clear leanings regarding the quality of care that was provided in the underlying lawsuit according to the evidence presented at trial.  The case involved an epidural steroid injection procedure where a pulse oximeter and blood pressure cuff were placed on the patient for monitoring while she was administered anesthesia face down.  During the procedure, the evidence was that the pulse oximeter read 0% and the blood pressure cuff registered no reading for a significant amount of time.  The evidence was that the defendant doctor, with knowledge of the readings, continued the procedure insisting that everything was fine.  After the 18-minute procedure, the patient was repositioned on her back and did not recover as expected.  She was taken to the local ER for further care and the defendant doctor indicated to the medical personnel that the patient was having complications from the anesthesia.  He failed to provide any information regarding the intra-procedure pulse oximeter or blood pressure readings. The patient was found to have suffered brain damage and ultimately died from the same.

At trial, the court charged the jury on both ordinary negligence, over objection by the defense, and professional negligence.  The plaintiff argued that the ordinary negligence charge was warranted due to the obvious obligation to save someone if they are not breathing and the misrepresentations made by the defendant doctor to the other healthcare providers.  The court provided no guidance as to which facts and circumstances in the case may apply to which theory of negligence. Further, the plaintiff appears to have argued in closing that the ordinary negligence standard was to be applicable generally to the defendants.

The Georgia Supreme Court made it clear that even “a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice.”  It was recognized that medical providers could be held to the ordinary negligence standard under the right circumstances, but primarily only in those cases where there was no need to exercise medical judgment.  Multiple times in the Court’s reversing opinion, it was highlighted that the facts of the case involved medical data provided by medical equipment during a medical procedure and the proper response to the same.  It was found that this required the exercise of medical judgment.

In cases involving claims of medical malpractice, the defendant is provided a presumption of due care which must be overcome by expert testimony by the plaintiff.  In cases involving ordinary negligence, no such presumption is given.  The Court found that the Court of Appeals erred in finding that a lay person would not need expert testimony to understand the meaning of the data provided from the medical machines and the proper method of response during the medical procedure.  The “trust” of the plaintiff’s argument was that the defendant doctor failed to properly respond to the data that was being provided by the machines.  This was information that required expert judgment and decision making which was outside the scope of ordinary negligence.

The Court determined that providing the jury with an ordinary negligence instruction, without clarification as to which facts and claims it may apply, invited them to decide the medical liability outside the boundaries for claims of professional negligence.  Primarily the need for expert testimony to overcome the presumption of due care.  This was compounded by the plaintiff’s counsel’s arguments in closing which made no distinction and appeared to encourage the ordinary negligence standard to all claims.  The jury verdict in favor of the plaintiff was a general form and did not allow the Court to determine whether the verdict was based on the application of the appropriate standard.  Because it was error to provide the ordinary negligence charge without further clarification or instruction, the Court reversed and remanded the matter to the Court of Appeals with a direction to send it back to the trial court for a full retrial as to the appealing parties, including the issue of punitive damages to which the plaintiff had previously been awarded $0.

So what does this opinion tell us?  It tells us that ordinary and professional negligence claims can live in the same case, but it is essential that they be clearly defined for the jury.  The trial court’s vague instruction, coupled with the plaintiff’s counsel’s closing argument, invited the reversal in this instance.  As the Court indicated many times, medical data from medical machines during a medical procedure require the exercise of expert medical judgment in determining the proper response.  The failure of the trial court and attorney to set this apart from any ordinary duty of care in defendant’s communications to other medical providers was harmful error which required the retrial.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

Arbitration Clauses Are Only As Good As the Signatory’s Power to Bind, Obviously

Posted on: November 29th, 2017

By: Shaun Daugherty

A name is just a name when it was found on the signature line of an arbitration agreement between a Tift County Georgia nursing home and one of its residents. A U.S. District Judge in the Middle District of Georgia rejected the nursing home’s request to enforce the agreement and move the litigation to arbitration under the Federal Arbitration Act (“FAA”).  Why?  Because the daughter that signed the agreement did not have the power to do so on her mother’s behalf.

A negligence suit1 against the nursing home was filed in state court following the death of the plaintiff’s mother at the facility. The case was removed to federal court and the defendant moved to have the case dismissed and to compel arbitration pursuant to the arbitration agreement that was signed at the time of the admission of the decedent.  The defendant claimed that the FAA applied and preempted state laws that may say otherwise.

The court agreed that the agreement would have been enforceable under the FAA, that is, if it had been a valid agreement. However, in order to determine the validity of the agreement, the court looked to state law first.  Upon the admission of the mother to the nursing home, the daughter signed the admission paperwork that included the arbitration agreement.  Unfortunately for the nursing home, the daughter did not have power of attorney at the time.  In addition, there was no evidence that the mother had given implied authority to the agreement as she was apparently not aware of its existence and was not present when it was signed by the daughter.  These facts led the federal judge to determine that there was no valid or binding agreement between the mother and the facility and the pending litigation remains pending for a potential jury trial.

This could be a costly lesson for this particular facility and should be a valuable example for other long-term care facilities that have implemented arbitration agreements for this very purpose. It seems basic, but it bears repeating, make sure that a person signing an agreement, if not the resident, has the actual power to bind the resident.  Contract law dictates that an enforceable arbitration clause must be valid between the facility and the resident.  If the resident is not the signatory, put a copy of the power of attorney, or other rights-transferring legal document, in the resident’s file.  If there is no such document, get as much evidence of implied authority as possible and follow up often until you get something official in the file.  It could be the evidence that keeps your company out of a courtroom and in front of an arbitrator.

Plaintiffs would prefer to have the case before a jury where sympathy and emotion can be inflamed with strategic evidence presentation, including graphic photographs of the decedent. Indeed, the attorney for the plaintiff in this particular case is quoted as indicating that litigation often leads to fairer outcomes for his clients compared to arbitration.  Reading between the lines, that generally equates to larger jury verdicts versus arbitration awards.  He also indicated that state court allows for more “robust” discovery.  As those of us that have dealt with these cases know, that typically means extensive, expensive discovery requests by the plaintiffs’ counsel in hopes of obtaining some discovery sanction from the court for alleged failure to respond.  Arbitration can be much more focused and streamline the process.  Bottom line, attorneys for injured parties prefer a jury.

The moral of the story is if you want a valid agreement, you must get the right binding signature.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

 

1. [Davis v. GGNSC Administrative Services LLC, case number 7:17-cv-00107, in the U.S. District Court for the Middle District of Georgia.]