In the first case, Wal-Mart v. Crossgrove, the Court concluded that the common law evidentiary component of the collateral source doctrine prohibits the admission of evidence of payments by third party payers, and also prohibits trial courts from reducing a plaintiff's recovery post-verdict by these amounts. The Court also addressed the collateral source statute, section 13-21-111.6, which codified the common law collateral source rule and abrogated the post-verdict component of the common law rule. Under the statute, a trial court is required to reduce a plaintiff's recovery by the amounts paid by third party payers, with one very big exception. The trial court is not permitted to reduce a plaintiff's recovery by amounts paid by third parties pursuant to a contract paid for by the plaintiff or on his behalf. This "contract exception" applies to health insurance plans and governmental benefit plans that are paid for by a plaintiff or his employer, such as Medicare, Tricare and VA benefits. The purpose of these rules, the Court said, is to prevent a tortfeasor from benefitting from the plaintiff's purchase of insurance or other benefits. The Court rejected the contention of the defense that this amounts to a "double recovery" for the plaintiff because the plaintiff must usually reimburse the third party payer out of the amounts recovered. The Court said that the statute did not eliminate the pre-verdict evidentiary component of the collateral source rule, and held that evidence of the amounts paid by third party payers must be excluded.
The second case, Smith v. Jeppsen, addressed a law just recently passed in 2011 by the General Assembly. Section 10-1-135(10)(a) codifies the common law pre-verdict evidentiary component of the collateral source rule prohibiting the admission at trial of evidence of the amount paid by plaintiff's insurance. The Court held that the statute was correctly applied by the trial court to a case that was pending at the time the statute became effective.
The third case, Sunahara v. State Farm, involves application of the pre-verdict evidentiary component of the collateral source rule to a verdict that occurred before section 10-1-135(10)(a) became effective. Because evidence of payments from a collateral source such as health insurance was inadmissible under the common law rule codified in section 13-21-111.6, the Court held that the trial court in this case correctly precluded evidence of the amounts paid by insurance.
The beneficiaries of these rulings will be those plaintiffs who have suffered the most catastrophic injuries. These are the people who are most likely to be affected in medical malpractice cases by the $300,000 pain and suffering damage cap, so it is very important for them to be fully compensated for their economic losses. The rulings may also encourage insurance companies to try to settle cases in which there are massive medical expenses rather than risk a large verdict.
]]>Sen. Mary Hodge (D-Adams County) has introduced SB 12-035 titled "A Bill for An Act Concerning Limited Liability for Spaceflight Activities." It appears that the Lockheeds (yeah, those Lockheeds) want Front Range Airport designated as a "Spaceport" by the federal government, and it is located in - you guessed it - Adams County. I guess the possibility of accidentally killing someone and getting sued is the only thing standing in Lockheed's way.
One of these days I'll post on all the special interests in Colorado - almost all involving big corporations and business interests - that have been immunized from liability in this state.
]]>Implied certification is a legal theory developed as a result of FCA defendants' position that, unless there is an express certification that a particular claim conforms with a particular law or regulation, there can be no 'false' claim, especially if CMS (or its fiscal intermediatry) goes ahead and pays the claim.
Fortunately, the Court, which takes only a small number of the petitions filed each year, has declined to hear this case. Although this case will now go back to the federal district court for trial or settlement, the arguments made here by Amgen will doubtless continue to be made in many other False Claims Act cases throughout the country.
]]>The Inspector General's office had independent physicians review the medical charts of 293 cases in which patients had been harmed. Only 40 of the cases had been reported to hospital managers, 28 were investigated by the hospitals, but only 5 led to changes in policies or procedures.
Colorado is one of 27 states that require hospitals to report publicly on infection rates. That information can be found by clicking here. Scroll down the panel on the left side of the page for specifical hospital or surgery site infection information.
]]>Of the 58,518 claims reviewed, an incredible 15.2% resulted in the death of the patient, and 8.3% resulted in a "major permanent injury," such as paralysis, brain damage or the need for life-long care. Another 18.2% sustained a "significant permanent injury."
Dr. Scott Regenbogen of the University of Michigan, who moderated the the session, said that contrary to the claims of many surgeons that malpractice claims do not accurately reflect the safety of surgical care, the analysis confirms what has been suggested in other large evaluations of malpractice claims that "most malpractice claims represent real errors and preventable errors."
The median surgical malpractice payment was $132,915 and the 95th percentile claim payment was $983,263. States with the highest payments were Illinois, Connecticut, Deleware and Wisconsin. States with the lowest payments were Michigan, Kansas, South Carolina and Texas. "Improper performance" of the surgical procedure was the most common allegation of malpractice (41.8%). Other allegations included retained foreign bodies (6%), wrong body part surgeries (3.2%), unnecessary procedures (3%), improper technique (2.4%), lack of informed consent (2.3%) and failure to recognize a surgical complication in a timely fashion (2%).
Visit our Surgical Errors page for more information on surgical malpractice cases.
]]>Colorado recently passed its own state False Claims Act, but it has received little publicity. Whistleblowers that file health care fraud cases under the Colorado Medicaid False Claims Act are entitled to as much as 30% of the amount the state recovers. Like the federal False Claims Act, the identity of the whistleblower is kept secret during the initial investigation by the government, because the case is sealed. A state claim under the Colorado Medicaid False Claims Act may be filed simultaneously with a federal case as a "pendent" claim in a federal False Claims Act complaint that seeks to recover both state and federal health care funds from persons or corporations that defraud Medicaid, Medicare, Tricare or other government funded health care benefit programs.
]]>The latest in the health care fraud and abuse saga - a bold attempt to legalize kickbacks. Drug maker Amgen is attempting to get the United States Supreme Court to rule that certain kickbacks in the drug industry are entirely legal. Amgen has petitioned the Court to hear a case where it is accused of providing physicians with free supplies (overfill) of its injectable drug, Aranesp. The physicians bill Medicare and Medicaid for the drugs even though they were provided free of charge by Amgen, so the sample drugs provide a financial incentive to prescribe Aranesp, which seems to be precisely the reason that Congress passed the AntiKickback Statute. Amgen, however, is appealing on "technical" grounds, asserting that claims are not fraudulent if the payor (CMS, or the fiscal intermediary acting on its behalf) goes ahead and pays them anyway, or, alternatively, that the payments don't violate AKS unless a specific federal regulation expressly prohibits the payment. Amgen is counting on a conservative Supreme Court that is loath to 'burden' the business world with unnecessary regulation. However, the AKS is not merely regulatory, it creates a criminal offense, and is intended to keep drug companies from influencing a health care provider's choice of treatment plans. It remains to be seen if the Court will accept this appeal. (The Supreme Court only accepts a very small percentage of certiorari petitions.) But stay tuned - Amgen has come equipped with the usual top flight legal talent experienced in defending allegations of health care fraud. For more on this subject, see our current article in Health Care Fraud news.
]]>The case at issue, Ortega v. Colorado Permanent Medical Group, involved a lawsuit by Ernest Ortega against his physician, Kaiser Foundation Health Plan, and the physician's group, Colorado Permanente, which is an affiliate of Kaiser. Mr. Ortega had been insured by Kaiser for over 20 years. Mr. Ortega underwent a treadmill stress test at a Kaiser facility. Shortly after the test, Mr. Ortega suffered a heart attack in the facility's parking lot. He sued the doctor, Kaiser and the doctor's group for malpractice.
]]> Since the late 1990's, Kaiser has maintained integrated electronic medical records which permit its physicians to access all of a patient's medical records. Mr. Ortega claimed that many of the medical records contained in Kaiser's electronic system were entirely unrelated to his claim of malpractice based on the cardiac treatmill stress test, and, therefore, his attorneys filed a motion for protective order to prevent the defendants from accessing the records in the course of litigation. Mr. Ortega claimed that the statutory physician-patient privilege prevented disclosure of the unrelated records. The trial judge ruled against Mr. Ortega, and ordered that the records were discoverable. Mr. Ortega brought a Rule 21 proceeding in the Supreme Court, claiming that the trial judge exceeded his jurisdiction or abused his discretion in ordering that the records were discoverable.The Supreme Court, in a 5-1 decision (Justice Martinez's seat on the court is vacant due to his recent resignation and Chief Justice Bender dissented), held that the physician-patient privilege did not apply to Ortega's electronic medical records. The court relied on C.R.S. 13-90-107(1)(d)(I), which states that the privilege "shall not apply to . . . a physician . . . who is sued by or on behalf of a patient . . . on any cause of action arising out of or connected with the physician's . . . care or treatment of such patient."
The court's decision is inconsistent with decades of Colorado law that had concluded that a patient, by filing suit, impliedly waived the physician-patient privilege but only with respect to medical records that were related to the condition that formed the basis for the lawsuit, or for records that were related to the treatment that gave rise to the lawsuit. No Colorado case until now has ever held that a patient waives his or her privilege as to all medical care and treatment for any condition whatever by filing a lawsuit.
As a practical matter, the decision would allow a physician sued for malpractice arising out a failure to diagnose a heart attack to discovery completely unrelated and irrelevant information about a patient's gynecological history, mental health conditions, and substance abuse problems, even if those issues had arisen many years earlier and had no connection whatsoever to the malpractice lawsuit.
The Ortega decision may be mitigated somewhat by the fact that Kaiser has been using integrated electronic medical records for over a decade. In many, if not most, cases, the patient's medical records, even if kept in electronic format, are not integrated in such a way that all physicians can access the records at any time. However, some hospitals do now permit their staff physicians to access electronic medical records. So, it looks like this case is going to result in a lot of serious litigation over the next several years.
Nothing makes a physician's attorney with no real defense to a malpractice claim happier than to find out that the plaintiff has something in his medical records that he doesn't want revealed. That is why they try so hard to obtain a patient's medical records. This case may make their job easier.
]]>Well, Walmart didn't like the verdict and asked the judge to overturn it, claiming that plaintiff's counsel should have given Walmart's lawyers the investigative report immediately instead of waiting until after the Walmart representative had taken the stand and denied the existence of the grease spill. Somewhat surprisingly, the trial judge agreed and ordered a new trial. Plaintiff's attorneys took a Rule 21 petition to the Supreme Court, which is a way to get the Supreme Court to review a trial judge's ruling right away instead of going through the usual appeal process. The Supreme Court reinstated the jury's verdict, holding that because the investigative report was a public document equally available to both sides, plaintiff's counsel did not have a duty to disclose the document to Walmart's lawyers.
This case may have far reaching effects. Colorado has broad discovery provisions requiring each side to turn over all relevant documents in their possession. The Supreme Court has carved out a major exception to the disclosure requirements for documents that are in the public domain and equally accessible to both sides. Walmart is probably working on a strategy of calling all of its documents public.
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