A New Trend? Hospital Successfully Sues its Patient’s Attorneys for Filing a Vexatious Malpractice Suit

By Alex Stein

Connecticut’s Appellate Court ruled in yesterday’s decision that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from contesting that decision. The only issue will then be the amount of damages—double or treble—that the attorney and her firm will be obligated to pay the hospital or the doctor.  See Charlotte Hungerford Hospital v. Creed — A.3d —-, 2013 WL 3378824 (Conn. App. 2013).

Whether this is going to be a trend in our medical malpractice law remains to be seen. In the meantime, I provide the details of that important decision. Read More

Is a Sperm Donor Ever a Dad? Time-Honored Answer in Jeopardy in California

Should a man who donates his sperm to a woman so that she can have a child through medically assisted reproduction later be able to claim parental rights to any resulting child? Would your answer change if the man and woman had an on-again off-again romantic relationship in which they tried for years to conceive “the old-fashion way” before turning to assisted reproductive technologies (ART)? How about if the couple briefly reconciled after the child was born during which time the man grew increasingly attached to his biological son? These are the questions now wending their way through the California judicial and legislative systems.

In case these facts aren’t intriguing enough, the controversy involves a third-generation Hollywood actor, Jason Patric (son of playwright/actor Jason Miller, grandson of comedian Jackie Gleason) and his long-time girlfriend Danielle Schreiber. If tabloids be believed, the pair dated for a decade before splitting in 2009. Sympathetic to his ex’s desire to become a mother, Patric allegedly agreed to donate his sperm on the condition that the provenance of her child remain a secret. Schreiber adhered to that promise after her son was born in late 2009, but sightings of the couple with the young boy two years later started the rumor mill churning. Patric’s biologic parenthood was confirmed in 2012 when he petitioned a Los Angeles family court for parental rights.

The California Family Code is replete with language addressing the rights (and lack thereof) of prospective fathers to seek adjudication of their legal paternity under various circumstances. Two sections are particularly apt to the Patric matter.  Family Code Section 7613(b) provides that “the donor of semen provided to a licensed physician…for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.” Assuming the absence of a written agreement, it would appear that Patric has no claim so long as the law regards him as a donor under the statute. Importantly and regrettably, the statute does not define the term “donor.”  Read More

How global regulations are written

By Kevin Outterson

In secret, during “trade” negotiations. Just one example: the 12 years of data exclusivity for biologics is currently US law, but that may get carved into stone in the new Trans-Atlantic Trade and Investment Partnership (TIIP). Once enshrined in a trade agreement, this rule and thousands more will be immune to change by any national democratic process.

Who participates in this process? Generally, only “cleared advisors” from the Fortune 500.

A partial (leaked) list of the initial bargaining positions for the EU are downloadable here. In the Initial Positions Papers, the EU notes that they have approved 16 biosimilars which have not yet been recognized as such in the US. Other topics include generic approvals, GMP inspections, and regulatory science for drug approvals.

All of decisions have immense potential impact for consumer welfare. My concern is the undemocratic lack of transparency for the entire process.

(cross-posted from TIE)
@koutterson

Introducing Blogger Jeffrey Skopek

Jeffrey Skopek received his J.D., magna cum laude, from Harvard Law School, where he served on the Harvard Law Review as Book Reviews and Essays Chair of the Articles Committee.  He also holds a Ph.D. and M.Phil. in the History and Philosophy of Science from the University of Cambridge, where he was a Gates Scholar and Fulbright Scholar, and an A.B. in History, with distinction, from Stanford University, where he was a Truman Scholar.  Following law school, he clerked for Chief Judge Sandra L. Lynch of the United States Court of Appeals for the First Circuit. His primary research interests are in the area of law and the biosciences, which ties together his interests in environmental law, health law, and bioethics, but he also works on issues that cut across these fields and into others, such as questions about the legal functions of anonymity.

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Governmental immunity for EMTs

By Alex Stein

According to the recent New York Court of Appeals’ decision—Applewhite v. Accuhealth, Inc., 2013 WL 3185185 (N.Y. 2013)—governmental immunity is a starting point for any inquiry into EMTs’ liability for malpractice.

The Court based this immunity on the famous “duty to all is duty to none” principle: in providing a vital emergency service to public in general, EMTs function in a governmental capacity and owe no duty to any specific individual. The Court explained that EMTs differ from the regular providers of medical care—doctors and nurses, who are subject to stringent licensing requirements and must have extensive educational and training credentials—in that they provide only emergency medical stabilization in Basic (as opposed to Advanced) Life Support ambulances. EMTs are also funded and remunerated differently from doctors and nurses: they operate on a limited municipal budget that depends on the taxpayers’ money and cannot afford malpractice payouts. Dilution of the EMTs’ budget might limit the municipal emergency response systems to mere transport service—a consequence that society can ill-afford. Read More

The Most Recent Obamacare Delay is Just the Opening Blow in Another Policy Battle

By Cassie Chambers

On Tuesday, the White House announced that it would delay implementing PPACA’s requirement that large employers provide their employees with health insurance.

Democrats portrayed this decision as evidence of legislations’s flexibility, arguing it showed the Administration’s commitment to work with the private sector to improve the regulations. Republicans rejected this framing, calling the maneuver a “a cynical political ploy to delay the coming train wreck associated with Obamacare until after the 2014 elections.”

The truth is probably somewhere in the middle.

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Introducing Guest Blogger Annette Rid


Annette Rid
is a Senior Lecturer in Bioethics and Society at the Department of Social Science, Health & Medicine, King’s College London, where she co-directs a new MA in Bioethics & Society. She also is an Affiliated Research Fellow at the Institute of Biomedical Ethics, University of Zurich, and a member of the working group to revise the 2002 CIOMS International Ethical Guidelines for Biomedical Research Involving Human Subjects. In the past, Annette has worked at the Department of Bioethics, National Institutes of Health; the Ethics & Health Unit, World Health Organization; the Secretariat of the Parliamentary Commission on “Ethics and Law in Medicine”, German Parliament; and the neonatal intensive care unit, Charité University Medicine Berlin.

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Employer mandate delayed for a year.

By Nicholson Price

The employer mandate has been delayed for a year, until 2015.  Under this provision of the Affordable Care Act, all employers with more than 50 employees are obliged to provide health insurance for their employees or pay “shared responsibility payments.”  According to a statement by Mark Mazur, Assistant Secretary for Tax Policy at Treasury, this year-long delay is in response to complaints by companies that the insurance reporting requirements under Section 6055 are complex and require more time to implement.   requirements, and connected reporting requirements, are complex and that companies need more time to implement them effectively.  Once that’s the case, it’s impractical to impose the cover-or-pay requirement.  This seems a bit substantively backward, but the overall effect is that both the reporting and insuring requirements are delayed.

The individual mandate, under which all individuals not otherwise insured must purchase coverage individually, is unaffected by this delay.  But the implementation of some subsidies in the exchanges is linked to employers’ decisions to offer coverage, and require accurate reporting, so exchange administration might get a bit more complicated, and will require some statutory and regulatory parsing.

It’s a bit surprising to think that even major areas like this still don’t even have proposed rules yet.  To be sure, had the Supreme Court’s decision on ACA’s constitutionality or the presidential elections come out differently, it’s likely that effort readying rules would have been wasted, but that understandable delay seems to be causing additional rollout problems now.

Suing Psychiatrists: Causation, Spoliation, Alternative Liability, and Lost Chance

By Alex Stein

Almonte v. Kurl, 46 A.3d 1 (R.I. 2012), is a must-read malpractice decision. This decision is about a patient who was brought to a psychiatrist for involuntary committal evaluation after undergoing an acute episode.  The psychiatrist examined the patient, but opened no committal process. As a result, the patient was released to commit suicide, apparently with the same gun that he threatened to use in the episode that triggered the evaluation.

The Rhode Island Supreme Court affirmed the trial judge’s determination that the psychiatrist’s failure to open the committal process amounted to malpractice. The psychiatrist was nonetheless able to summarily defeat the wrongful death action filed by the patient’s family.

How could that happen? Read More