AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
AHLA's monthly podcast featuring health lawyer and blogger Norm Tabler's informative and entertaining take on recent health law and other legal developments.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
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Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit american health law.org.
Speaker 3:Hi. I am Norm Tabor with this month's edition of the Lighter Side of Health Law. Careful what you sign . Dr. Robert Ochoa has learned the hard way to be careful what he signs. He was in the ER one night when physician assistant Jose Rincon stuck a form in front of him and asked for a signature. He signed it even though he wasn't Rincon supervisor and hadn't treated the patient or even been asked to consult on her care. So he was surprised, even shocked when he was later sued by the patient's daughter alleging that he was negligent for allowing mom to be discharged, resulting in a stroke the next day and permanent incapacitation. Dr. Ochoa responded that he was not mom's doctor and had nothing to do with her treatment or discharge, but the trial court and the appellate court ruled against him. Why? Because he had signed the form on a line labeled supervising physician, and the form contained the boilerplate statement. I agree with the assessment and care plan. So the court's ruled. There is clear evidence that Dr. Ochoa had established a physician patient relationship with mom. The case is Ochoa versus Avila , Texas Court of Appeals. How about an instruction that the doctor has to lose? Although I practiced health law for decades, I have very little experience with trying med mal cases. Maybe that accounts for my surprise at what the plaintiff wanted. In this Virginia Case, you decide. Kimberly Birch sued Dr. Jeff Sinick for malpractice after her mother died. She also sued several other doctors, but they settled. When the jury found in Dr. Jeff's favor, Kimberly appealed arguing that the trial judge heard by refusing to give one instruction she requested. And by giving two others, she objected to. It's these three instructions that floored me. First, Kimberly wanted a quote , empty chair instruction that the jury should be forbidden to even consider whether any person other than Dr. Jeff was negligent or contributed to mom's death. Second, Kimberly objected to the instruction that the fact that mom died did not in itself entitled her to recover. Third, she objected to the instruction that the fact that Dr. Jeff's efforts were unsuccessful did not in itself establish negligence. The appeals Court ruled against Kimberly on all three issues. I'm surprised she didn't ask for an instruction saying, heads the Dr . Loses tales , Kimberly wins . The case is Birch versus Seig , Virginia. Court of Appeals. Is there an echo in here? Well, the latest development and the long running Harvard versus Zurich Insurance Battle sounds a lot like some of the earlier rounds. You'll recall that Harvard racked up millions of dollars in attorney's fees in defending its affirmative action admission policy. When Harvard submitted a claim to Zurich Insurance, Zurich denied coverage, noting that Harvard was over a year late in notifying it of the suit. Harvard tried theory after theory from we weren't required to notify you to We did notify you to, okay. It was informal notice, but still notice to Hey, everybody knew about the case to, well, reporters notified you, but Harvard lost every round. Now, Harvard has tried a new theory suing its broker Marsh and arguing something like Poor Zurich was right all along and had no notice of the suit, knew nothing about it. And you know why? Because our crummy broker was supposed to do the notifying and failed to do it. So Marsh owes us our defense costs. Well guess how Marsh responded? Marsh like Zurich says, Harvard filed its suit too late over a year after the statute of limitations expired. Stay tuned. The case is Harvard versus Marsh District of Massachusetts. Reptile theory is trial strategy. Do you know what the reptile theory of trial strategy is? I didn't until I read about this Georgia Med mal case. When the jury came in with a $10 million verdict for Amy McGirk because of a botched gallbladder operation, the defense appealed claiming that Amy's counsel had used the reptile theory as part of its trial strategy. What is the reptile theory you're wondering? Well, it's a courtroom technique that tries to activate a juror's brain into a reptilian survival mode by suggesting that the defendants are a danger to the community and need to be punished to stop them. While the appeals court ruled that Amy's lawyer had done no such thing, he hadn't told the jury the defendants needed to be punished to prevent future harm, only that they needed to take responsibility for what they'd done to Amy. So now you know the case is white versus McGirk, Georgia Court of Appeals. Sometimes a name says it all. A recent case of self-dealing by a state court judge in Alabama demonstrates yet again that sometimes a name says it all. In this case, the judge has been charged with self-dealing with public funds. The 18 self-dealing charges include spending public funds on a couch for himself, alcohol, eyeglasses, vacations, including skiing, cycling and beach trips, framing for his son's diploma and hiring. Said son , for $10 an hour, the name of the self-Dealing Judge Self, yes, his name is Self Gilbert Self a new role for chatbots. We've all read a lot about using artificial intelligence, notably chatbots for legal research and brief writing . While Air Canada has found a new role for chatbots fall guy , the airline uses a chatbot for customer service questions. When a customer logged onto the Air Canada website and asked about bereavement fees, the answer was that he should purchase the tickets at full price and seek refund. Within 90 days. When the airline refused the refund, the customer produced a screenshot of the advice he had received. Oh , responded. Air Canada we're not responsible for that bad advice. You got it from a chatbot, which is a separate legal entity from us. Thanks for choosing Air Canada. What did the judge think of Air Canada's position? Not much. That chatbot, the court ruled is a part of Air Canada's website. It should be obvious to Air Canada that it is responsible for all the information on its website. Air Canada has suspended use of the chatbot words that don't count. Appellate lawyer, Mark Perry had a lot to say in his brief before the Federal Circuit Court of appeals so much that it exceeded the court imposed word limit by some 1,300 words. That's when he had a crackerjack idea . Instead of putting the extra words in his brief, he would quote , incorporate by reference the words in a brief in another case, pretty slick, eh ? Well, the opposing lawyers didn't think so. They cried foul. Mark did not respond. So the judge stepped in and demanded an explanation. Well, mark explained. No court has ever expressly ruled that the word count includes words incorporated by reference from the same party's brief in a companion appeal. Plus, I've done you a favor by enhancing efficiency and streamlining the briefing. In other words, you ought to thank me for handling it this way. The court's response. Look buddy. A word limit is a word limit at Rule 28 and at least two decisions make it clear that you can't use incorporation by reference to beat the word limit. Also, how does it streamline anything or enhance efficiency when you force the court to cross-reference arguments from multiple briefs in multiple cases? Don't ever do that again. Mind your tongue. Well, it turns out that some of the words we've been using are hurting people's feelings. What words? Well, for one non-lawyer. Yes, a non-lawyer, a representative of the Stanford Center for Legal Informatics has started a formal petition calling on the A BA to ban the term. Why? Because the petition, it says it hurts the feelings of non-lawyers to be called non-lawyers . So what should we call non-lawyers? Well, the petition says call them something. They are not. Something they're not. But what if, for example, you want to warn a client that the attorney-client privilege may be waived if a non-lawyer is in the room or on the call. If you can't call those unnamed people, non-lawyers , and you have to say what they are instead of what they're not, do you have to list all the professions and positions of people whose presence in the room or on the line might cause a waiver of the privilege? Wow. Well, this makes me feel kind of dumb. It's not just that I've been using the term without knowing I was hurting anybody's feelings. It's also that for decades I was often the quote non-physician member of hospital committees. And I was too dumb to know that my feelings should have been hurt by being called a non-physician complaint department, zeros and os. Here's another thing that bugs me. The confusion between zeros and os. You run into it all the time. Take phone numbers. If a person has the phone number, four, eight, nine, zero nine, chances are he'll say it's 4 8 9 0 9. But of course that's wrong. There is an O on the phone dial or keypad. It's linked with the six. Six is MNO. So if you literally interpret 4 8, 9 0 9, you dial 4, 8, 9, 6, 9. The confusion is mostly with phone numbers, but that's not all. Take the old TV show Hawaii five oh . The O is there because Hawaii is the 50th state, but the second character in 50 is a zero, not an O . So it ought to be Hawaii five zero . But the real problem comes in reading, tracking numbers and model and serial numbers. It's always long and alpha numeric, meaning it has both numbers and letters and the O'S and zeros are almost identical. How do you know whether it's a zero or an O ? Often you don't. So you don't know what to type in or read off. And here's something that proves to me. It's one big conspiracy. Take a look at your computer keyboard. Notice anything funny about the placement of the O key and the zero key. That's right. One is right over the other. They could not be closer and it couldn't be more confusing. Coincidence, I doubt it. If you have a complaint, send it to me. Well, that's it for this month's edition. I hope you liked it. I'll be back next month with another edition of the Lighter Side of Health Law.
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to A HLA speaking of health law wherever you get your podcasts. To learn more about A HLA and the educational resources available to the health law community, visit American health law.org.