This column provides executive summaries of developments in legal and regulatory issues related to healthcare, lists a bibliography of pertinent healthcare law-related articles, and discusses interesting health law court decisions.
NEWS
Legislation has been introduced in Congress, which would require states to offer Medicaid coverage for primary healthcare services provided by advanced practice registered nurses. The Medicaid Nursing Incentive Act was introduced in the U.S. House of Representatives on June 3, 2003 and would restore a previous federal mandate to cover the primary care services of pediatric nurse practitioners, family nurse practitioners, and certified nurse midwives, which was eliminated by the Balanced Budget Act of 1997. The bill also expands Medicaid fee for service coverage to include direct reimbursement for all nurse practitioners and clinical nurse specialists, and Medicaid managed care panels would be required to recognize the specialized services of select APRNs such as the pain management services provided by CRNAs and mental health services provided by CNSs and would thus clarify the scope of providers required by managed care plans to specifically include APRNs. (AONE enews update June 13, 2003).
The governor of Texas signed legislation on June 11, 2003 setting a $250,000 cap on noneconomic damages for hospitals and other healthcare providers and making other procedural changes to healthcare liability law in that state. The full press release regarding this legislation is available at http://www.governor.state.tx.us/divisions/press/pressreleases/PressRelease 2003-06-11.3016 view.
JCAHO has released its 2004 accreditation standards for hospitals, ambulatory care, behavioral healthcare, home care, laboratory, and long-term care. For details, visit http://www.jcaho.org/accredited+organizations/2004+standards.htm.
JCAHO has adopted a new "universal protocol" for eliminating wrong site, wrong patient, and wrong procedure surgery errors, which must be complied with as of July 2004. It is available on the organization's Web site at http://www.jcaho.org.
JCAHO has made available examples of acceptable alternative approaches to complying with its 2003 National Patient Safety Goal recommendations at http://www.jcaho.org/accredited+organizations/patient+safety/npsg.
A study released this summer indicates that the nursing shortage adversely affects patient satisfaction. For more information, visit http://www.pressganey.com.
A team of critical care medicine and bioethics experts based at Brown University has begun an 18-month initiative to address the practice of medical rationing in U.S. intensive care units. The VERICC (values, ethics, and rationing in critical care) task force plans to develop and implement a resource allocation model to assist clinicians and administrators to make the most of increasingly scarce means. Look for follow-up information regarding this task force in future issues of JONA Law.
JCAHO has revised its requirements for National Patient Safety Goal 2b as of July 2003. Now, the list of prohibited abbreviations, acronyms, and symbols must at a minimum include a 6-10-item set of JCAHO specified dangerous abbreviations/acronyms/symbols. For further details, visit http://www.jcaho.org.
The Department of Health and Human Services has commissioned the Institute of Medicine to design a standardized model of an electronic health record as part of an ongoing effort to build a national electronic healthcare system that will allow patients and their doctors to access their complete medical records anytime and anywhere needed. The model is expected to be ready next year (HHS press release July 1, 2003).
JCAHO plans to revise performance areas evaluated during unannounced surveys. Beginning next year, the reporting of standards compliance will be organized by critical focus areas (processes, systems, or structures in the organization that significantly impact the quality and safety of care). The 2004 fixed performance areas will include staffing, infection control, medication management, and the JCAHO National Patient Safety Goals that are relevant to the facility's care and services. For more information, visit http://www.jcaho.org/news+room.
CASES
Scripps Health v. Superior Court (California Court of Appeal, Fourth Appellate District, Case No. GIN21738, June 2003)
Confidential occurrence reports prepared by a hospital were protected by the attorney client privilege and thus were not discoverable during a malpractice action against the facility.
Guadalupe v. Agosto, 299 F.3d 15 (2002, Puerto Rico)
A patient's claim of inappropriate medical screening based on the hospital's failure to provide certain diagnostic tests needs to at least address whether the facility was capable of performing the tests. Because plaintiffs failed to present evidence that the hospital's screening was not reasonably calculated to identify critical medical conditions, plaintiffs could not maintain an EMTALA claim against the facility.
Ligouri v. Wyandotte Hospital and Medical Center, 655 N.W.2d 592 (Ct. App. Michigan, 2002)
Michigan's peer review privilege protects documents (such as incident reports) generated with regard to general negligence claims as well as professional negligence claims.
Johnson v. University Hospitals of Cleveland, 780 N.E.2d 619 (Ct. App. Ohio, 2002)
Incident reports in Ohio may lose their protection under peer review statutes and be discoverable if the medical record does not properly reflect the facts of the patient's care.
Hanshaw v. River Valley Health Systems, 789 N.E.2d 680 (2003, Ohio)
A hospital has no duty to provide results of newborn screening tests to parent of child born there; this duty belongs to the physician who ordered the tests.
Contreras v. Childrens Hospital of Los Angeles, 2003 WL 21328937 (California Appeals Court, 2nd District, June 2003)
Parents who signed a pretreatment admission document acknowledging that the doctors were not employees or agents of the hospital had actual notice of the independent contractor status of the doctors and cannot afterward argue that the hospital was liable for the actions of the doctors (Unpublished decision).
Brandt v. Boston Scientific Corporation, 204 Ill.2d 640 (Supreme Court of Illinois, 2003)
Patient who had pubovaginal sling implanted for incontinence could not sue hospital for breach of implied warranty of merchantability pursuant to the Uniform Commercial Code despite the fact that hospital sold her the device because the transaction between the hospital and the patient was predominantly for services and only incidentally involved the purchase of goods.
Vanstelle v. Macaskill, 622 N.W.2d 41 (Court of Appeals of Michigan, 2003)
Hospital that was landlord of office space used by physician's employer was not vicariously liable for physician's malpractice nor did hospital's representation that the physician had staff privileges make it vicariously liable for his alleged malpractice.
Sun Health Corporation v. Myers, 70 P.3d 444 (Arizona, 2003)
A hospital's general statement of reasons for suspension of a physician's staff privileges constitutes information received and kept by the Board of Medical Examiners as a result of an investigation and thus was protected by the peer review privilege from being discovered in a wrongful death lawsuit.
VERDICTS
Page v. Carper Case No. 2001-18444, May 23, 2003
A jury in Alameda County, California awarded $14.85 million to a mother and child for the child's severe brain damage as a result of a delayed c-section resulting in a ruptured uterus during a vaginal birth after cesarean section. The hospital was determined to be 60% liable, and the physician 40% liable.
Isaza v. Asuncion 2003 WL 21213438, Conn. Superior Court
A Connecticut court awarded over $60,000 in damages to the father of a deceased infant to compensate him for the defendant hospital's negligence and fraud in losing autopsy specimens and concealing the loss. The autopsy had been done to determine if the infant had died due to a drug mistake by the hospital, and the loss of the specimens made it impossible to make this determination.
REGULATION UPDATE
The California Department of Health Services has released revised nurse to patient staffing regulations.
The Minnesota Health Department is now responsible for tracking and preventing medical errors in hospitals in that state. Hospitals in Minnesota must now disclose to the Department of Health when adverse events occur and share this information with the public. For more information, visit http://www.federaltelemedicine.com/n070303.htm.
The Centers for Medicare and Medicaid Services has released a document entitled "Guidance on Compliance with HIPAA Transaction and Code Sets After the October 16, 2003 Implementation Deadline," which is available in pdf format at http://www.cms.gov.
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