NEWS
Leaders of the "100,000 Lives Campaign" have announced that hospitals have reduced lethal mistakes and breakdowns in care to prevent the unnecessary deaths of more than 120,000 patients in the last 18 months. The main components of the campaign included the deployment of rapid response teams for emergency care of patients whose vital signs suddenly deteriorated, the additional checks on medications to protect against drug errors, and the prevention of surgical site infections. (Associated Press, Campaign against hospital mistakes says 122,000 lives saved, June 15, 2006)
The Department of Health and Human Services Office of the Inspector General (OIG) has announced they expect $1.02 billion in fraud recoveries for the first half of fiscal year (FY) 2006. This recovery includes $288 million in audit-related recoveries and $732.4 million in investigative-related recoveries. The OIG also announced that in the first half of FY 2006, 1,540 individuals and organizations were excluded for fraud or abuse of federal healthcare programs or their beneficiaries; 226 individuals or organizations were criminally prosecuted for crimes against DHHS Programs; and 119 civil actions were commenced, including False Claims Act and unjust enrichment suits, Civil Monetary Penalties Law settlements, and administrative recoveries related to provider self disclosure matters. (American Health Lawyers Association, AHLA Weekly, June 12, 2006)
A report released by HealthGrades, Inc. on April 3, 2006 indicates that some 1.24 million Medicare patients suffered adverse safety incidents in American hospitals between 2002 and 2004, resulting in more than 250,000 potentially preventable deaths. The number of Medicare patient safety incidents rose by 60,000 over the number in the period from 2001 to 2003. (HealthGrades, Inc. Third Annual Patient Safety in American Hospitals, April 3, 2006)
A study examining 20 years of data from a malpractice insurance provider revealed that cases of wrong-site surgery are rare, and that new US guidelines designed to prevent wrong-site surgery would only have prevented two thirds of the errors. The authors of the study suggest that it would be better to spend time on more common problems that are dangerous to patients such as infections, bleeding, and leaving foreign objects, such as sponges, inside patients. (Cases of "Wrong-Site Surgery" Are Rare, HealthDay News, April 19, 2006)
LEGISLATION
A Senate bill (S.3042) has been introduced to increase federal funding to hospitals to help them prepare and respond to natural disasters and bioterrorist attacks. The bill would also require the states to evaluate their preparedness for all public health threats they are likely to face, including natural disasters, terrorism, and infectious disease. It would also create a new public health emergency fund to help hospitals continue to operate in the event of a natural disaster or bioterrorism attack.
A New York bill, proposing to limit the amount that hospitals in that state receiving funds from the state's indigent care pool can charge low-income uninsured patients, was signed into law by the governor on April 19, 2006.
A bill has been introduced in Alaska that would prohibit hospitals from requiring nurses to work overtime or punishing them if they do not work overtime. Hospitals would retain the right to demand overtime in emergency situations (HB 271).
The Freedom of Choice Act (H.R. 5151) has been reintroduced in Congress. The bill is aimed at guaranteeing the legal right of women across the country to seek an abortion.
JCAHO
JCAHO has announced the approval of an infection control standard requiring accredited organizations to offer influenza vaccinations to staff, including volunteers and licensed independent practitioners with close patient contact. This standard will become an accreditation requirement beginning January 1, 2007 for the Critical Access Hospital, Hospital, and Long Term Care accreditation programs. This standard will require organizations to establish an annual influenza vaccination program that includes at least staff and licensed independent practitioners; provide access to influenza vaccinations on-site; educate staff and licensed independent practitioners about flu vaccination; nonvaccine control measures (ie, use of appropriate precautions); and diagnosis, transmission, and potential impact of influenza. It will also require that the facility annually evaluate vaccination rates and reasons for nonparticipation in the program as well as implement enhancements to the program to increase participation. (JCAHO Press Release, June 13, 2006)
JCAHO has released its 2007 National Patient Safety Goals. Major changes include the extension of a requirement that accredited organizations define and communicate the means for patients and their families to report concerns about safety across all JCAHO accreditation and certification programs. This requirement is the central focus of the goal to encourage patients to be actively involved in their own care as part of a patient safety strategy. Another new requirement specifies that behavioral healthcare organizations as well as psychiatric hospitals and patients being treated for emotional or behavioral disorders in general acute care hospitals must identify patients at risk for suicide.
JCAHO has announced a new process for conducting on-site accreditation surveys and certification reviews on an unannounced basis. This process applies to all of the healthcare organizations accredited or certified by JCAHO. From 2006 through 2008, the unannounced survey will occur in the year in which the organization is due for its next survey. Subsequent unannounced surveys will occur during an interval of 18 to 39 months after the organization's previous unannounced survey. (JCAHO Press Release, April 18, 2006)
CASES
An Appeals Court determined that the trial court abused its discretion in excluding from a medical negligence action the parents' testimony about whether they would have consented to their minor daughter's plastic surgery had the surgeon disclosed the risk of permanent nerve damage, but the Appeals Court felt that the exclusion was harmless error because it was unlikely that the disclosure of this risk would really have kept the parents from giving their consent. The court relied on the fact that the parents' expert had testified that permanent nerve damage was extremely rare and that in his experience patients who had been advised of this risk had never declined to undergo the procedure. Midler v Benjamin (No. AC 26121, Connecticut Appeals Court, June 6, 2006).
A California Appeals Court, in an unpublished opinion, has determined that liability claims filed against medical providers who treated the driver responsible for a head-on collision were timely. The claims against the providers were filed almost 2 years after the victim filed suit against the driver causing the accident. The victim alleged that the medical providers were partially to blame for the accident because they were aware of the driver's chronic alcoholism and prescription drug abuse, yet failed to advise her not to drive and did not alert the Department of Motor Vehicles of her incapacity. Kozano v Scripps Clinic Medical Group. Inc. (No. D045887, California Court of Appeal, 4th District, June 2, 2006).
Erin Brockovich, the legal assistant played by Julia Roberts in the movie bearing her name, is a plaintiff in 7 lawsuits filed in Los Angeles County Superior Court in June 2006, alleging that the defendant healthcare companies are charging Medicare to treat illnesses they helped cause by medical error or neglect. The cases do not involve specific allegations of wrongdoing but seek to find evidence of such treatments and argue that Medicare should be reimbursed. Brockovich is suing on behalf of the United States under a law allowing citizens to file lawsuits in the government's name. Similar lawsuits have been filed in New Jersey and Florida. Daniel Yi, Erin Brockovich Takes Role as Plaintiff in Medicare Suits (Los Angeles Times, June 7, 2006).
The California Supreme Court will review the lower courts' decisions in the case of North Coast Women's Care Medical Group v. Superior Court. This case, which was discussed in our last issue, involved the refusal of an OB/GYN physician to perform fertility procedures for a lesbian couple. Watch this feature for additional information on the state Supreme Court's ruling in this matter.
The Florida Supreme Court has determined that the state's abortion informed consent statute is constitutional and is comparable to other informed consent statutes. In so finding, the court reversed an appeals court's decision, which found that the statute violated a woman's right to privacy and was unconstitutionally vague. Florida v Presidential Women's Center (No. SC04-2186, Fla., April 6, 2006).
The Maryland High Court has determined that certain documents including e-mails and other written statements submitted by hospital staff to a medical review committee were privileged under the state's peer review privilege. The court overruled a lower court's holding that only materials generated by the committee itself were privileged. St. Joseph Medical Center, Inc. v Cardiac Surgery Associates, P.A. (No.64 September Term 2003, Md., April 12, 2006).
A Federal Appeals Court has determined that a skilled nursing facility failed to show that its mistreatment of residents did not pose a risk of death or serious harm, upholding Centers for Medicare and Medicaid Services' determination that certain of the SNF's violations were so severe that they warranted levying an "immediate jeopardy" civil money penalty in excess of $20,000. The conduct at the SNF included nurses using soiled gloves as well as unsanitized scissors to change 3 different residents' pressure sore dressings, nurses failing to clean pressure sores after the patient had a bowel movement, and placing new dressings over sores potentially contaminated with fecal material. The facility was determined to be in noncompliance with a total of 29 regulatory requirements. Barbourville Nursing Home v Department of Health and Human Services (No. 05-3421, 6th Circuit, April 6, 2006).
A second mistrial was declared in the Federal Government's lawsuit against Alvarado Hospital Medical Center in April 2006. The jury was not able to reach a verdict in the case, resulting in the judge having to declare a mistrial. The Government has alleged that the hospital, owned by a Tenet Healthcare Corporation subsidiary, provided personal payments to its employees for arranging certain relocation agreements at the hospital and had obstructed the government's investigation. A jury had also deadlocked on this case in February 2005. The mistrial came after a 7-month trial and more than 60 days of deliberations over the course of 4-1/2 months. American Health Lawyers Association, Judge Declares Second Mistrial in Tenet Physician Relocation Dispute (Health Lawyers Weekly, April 7, 2006).
The Oregon Court of Appeals has upheld that state's cap on noneconomic damages at $500,000 as being in accordance with that state's constitution. Hughes v PeaceHealth (No. A123782, Oregon Court of Appeals, March 15, 2006).
A cardiologist in Louisiana has been indicted for allegedly performing unnecessary diagnostic tests and surgical procedures on 94 patients and fraudulently billing Medicare and private insurers $2.5 million from 2001 to 2004. United States v Patel (13 No. 12 Andrews Health Law Litigation Reporter 6, April 26, 2006).
The Ohio Court of Appeals has ruled that a hospital peer review committee cannot be sued for breach of contract by a physician suspended for allegedly exhibiting inappropriate behavior at work, finding that the committee was immune under the Health Care Quality Improvement Act. Catipay v Humility of Mary Health Partners (13 No. 12 Andrews Health Law Litigation Reporter 7, April 26, 2006).
An appellate court in Massachusetts has upheld a jury verdict of $1.2 million against a diagnostic laboratory that failed to notify the plaintiff's physician that plaintiff was suffering a medical crisis due to a dangerously high level of anticoagulants in his blood. Morgan v Laboratory Corporation of America (13 No. 12 Andrews Health Law Litigation Reporter 9, April 26, 2006).
A Federal Court in New York has determined that the peer review privilege does not apply to documents sought for a false advertising claim. The court found that once a medical services provider advertises to the public, they subject themselves to New York's false advertising and deceptive business practices regulations. The lawsuit, brought by the wife of a pancreatic cancer patient, alleged that the hospital misrepresented, among other things, a 95% success rate for cancer treatment. She sought production of information on the success rate of the treatment used on her deceased husband, which was opposed by the hospital. The court ordered the hospital to produce the documents requested by the plaintiff. Ryan v Staten Island University Hospital (No. 04-CV-2666 [ENV] [KAM] Eastern District New York, April 13, 2006).
A patient in California has sued her doctor and his employer for negligence, medical battery, fraud, and deceit, alleging that the physician intentionally addicted her to Vicodin so he could sexually abuse her, and that he failed to treat her serious medical conditions. Bello v Sablove (11 No. 10 Andrews Health Care Fraud Litigation Reporter 11, April 12, 2006).
VERDICTS/SETTLEMENTS
A hospital in Delaware has agreed to pay $1 million and comply with Medicare regulations as part of a pre-suit settlement involving its billing practices, ending a federal investigation into allegations that it and 2 of its doctors violated the False Claims Act. Delaware Hospital Settles False Claims Probe for $1 Million (11 No. 10 Andrews Health Care Fraud Litigation Reporter 7, April 12, 2006).
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