A recent case decided Feb. 10 has the nursing home industry and plaintiff malpractice attorneys clamoring over whether certain measures taken by nursing homes during the pandemic should be immune from plaintiff negligence lawsuits against nursing homes.
To read the full text of this article by Duane Morris partner Neville M. Bilimoria, which was originally published in Chicago Lawyer, please visit the firm website.
On March 25, 2021, Illinois Governor J. B. Pritzker vetoed a bill that would assess prejudgment interest to personal injury and wrongful death verdicts. The bill originally was reported as House Bill 3360 (“H.B. 3360”) and more recently passed the Legislature as a compromised plan, S.B. 72, which reduced the prejudgment rate from 9% to 6 %, allowing plaintiffs with personal injury or wrongful death verdicts to recover the interest on all damages except punitive damages, sanctions, statutory attorneys’ fees, and statutory costs. On January 13, 2021, H.B. 3360 passed the Democrat-controlled chambers of the General Assembly. H.B. 3360 provided 9% prejudgment interest to personal injury and wrongful death verdicts to be calculated annually from the time the defendant was placed on notice of the injury to the date of judgement. Illinois remains one of just four States not to have some form of prejudgment interest available for trial-winning plaintiffs.
On April 24, 2015, the Texas Supreme Court dismissed claims against a compounding pharmacy and its individual pharmacists which alleged negligence in compounding a lipoic acid medication, finding that the defendants were health care providers entitled to the protections in the Texas Medical Liability Act (“TMLA”).
An orthopedic surgeon agreed on two separate occasions to an on-call coverage contract with a local hospital in which he warranted that no portion of his compensation was in exchange for referrals. When the contracts were terminated by the hospital after the surgeon invested in a competing surgery center, the surgeon brought a whistleblower False Claims Act action against the hospital, alleging that the contract was intended to induce his referrals.
The U.S. District Court for the Eastern District of Pennsylvania, in Cooper v. Pottstown Hospital Co., LLC, et al., dismissed the surgeon’s complaint. The district court’s description of the failure of the complaint illustrates the characteristics of on-call contracts that make them a permissible relationship between hospitals and physicians. Continue reading “On-call coverage contracts are OK”
In healthcare, companies often hire consultants to review billing and coding, privacy and security and a host of other technical issues that regular staff does not have the time or expertise to pursue. A recent discovery ruling in federal court in the Eastern District of Pennsylvania holds that communications with such outside consultants are privileged from discovery if they are made for the purpose of assisting the company in securing legal advice or making legal decisions.
In Smith v. Unilife Corporation, a whistleblower brought an action under Sarbanes-Oxley and Dodd-Frank alleging shareholder fraud and failure to comply with certain FDA requirements. The plaintiff sought discovery of two non-lawyer consultants regarding drafts of the company’s SEC Form 10-K filing. The Court’s decision to deny the plaintiff’s motion to compel was based on the “functional equivalent” doctrine, a principle already adopted in the 8th, 9th and D.C. Circuits, but not yet in the 3rd Circuit.
Continue reading “Consultants’ Communications Privileged from Discovery”
In an opinion openly skeptical of a relator’s knowledge, the 7th Circuit Court of Appeals recently affirmed the dismissal of False Claims Act claims against a Chicago pharmacy brought by a former employee of the pharmacy. The principal claims in the case, Grenadyor v. Ukrainian Village Pharmacy, Inc., were that the pharmacy’s practice of soliciting and keeping its base of mostly Ukrainian customers by providing gifts of caviar and Russian language TV Guides, as well as waiving co-pays, amounted to kickbacks in violation of the federal (and several state) anti-kickback statutes.
Judge Richard A. Posner, the author of the court’s opinion, revealed his distaste for the relator early in the opinion by describing him as a “bounty hunter”. The court rejected most of the relator’s claims because he had failed to identify a single patient who received gift bags worth more than the de minimis $50, even though the relator had amended his complaint ostensibly to correct this deficiency, and had not alleged that the pharmacy intended to offer kickbacks when it certified to the government that it would abide by Medicare and other federal laws. Continue reading “7th Circuit Clarifies FCA Fraud Standard”
