AHLA's Speaking of Health Law

The Lighter Side of Health Law – March 2018

March 15, 2018 AHLA Podcasts
AHLA's Speaking of Health Law
The Lighter Side of Health Law – March 2018
Show Notes Transcript

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.

Speaker 1:

Hi, I'm Norm Taber, host of the A H L A podcast series speaking of health law, where we focus on the lighter side of health law. I hope you enjoyed this month's edition, the Imaginative Defense Award. From time to time, we come across a legal defense that's so darn imaginative at merits an award. This month's winner is all a more impressive because he's not a lawyer, he's a layman and a young one at that standing outside of St. Petersburg, Florida Resort. 28 year old Levi Miles spotted young Chloe Rimmer admiring a$300,000 yellow Ferrari spider. Naturally, Levi told Chloe the spider was his. When Levi asked for the keys, the parking attendant asked for the claim ticket. Levi said it was in the car and he'd bring it over. On his way out, the attendant gave him the keys and Levi and Chloe drove away without giving the attendant the claim ticket or a tip. Well, as you've guessed by now, the spider did not belong to Levi. It belonged to Orlando attorney Skip Fowler. Skip is suing the resort for what might be called parking attendant malpractice. Meanwhile, the police pulled Levi over not for driving a stolen car, but because the taillights weren't working and he clearly didn't know how to operate it. Levi has been charged with Grand Theft Auto and this is where the imaginative defense comes in. Levi's position is that he did not steal the car. The attendant gave it to him. You can't make this up. The$5 million punctuation nerds love to argue over the serial. The com you may or may not insert before the last item in a list, leaving the comma out safe space and avoids looking prissy, but it can lead to ambiguity. Say an article reads quote, the winner thanked her parents, state Senator June Smith and Representative Sam Jones, our Smith and Jones, her parents a after Smith would've told us they were not without it, were unsure. In Maine, the overtime statute had a perishable food exemption covering activities such as canning, processing and preserving, all separated by commas. The end of the list reads, packing for shipment or distribution. Oakhurst Dairy said those last five words are two different activities. One is packing for shipment. The other is distribution. There's no comma because the legislative drafting manual says not to use the serial. The delivery drivers countered is just one activity. Packing for shipment or distribution. We don't do any packing. All our distribution is non-exempt, so we get overtime. When the driver sued, everyone agreed that if there had been a comma after packing for shipment, the dairy would win. The district court cited with the dairy, but on appeal, the first circuit reversed holding that the missing made the statute ambiguous and under main law and ambiguity in that statute is resolved in favor of workers. In February, February, the two sides settled the dispute for 5 million. Meanwhile, Maine rewrote the statute to reflect the DA's position. If you're wondering whether Maine inserted the serial, the answer is no. They avoided the problem by omitting commas altogether and using semicolons. The case is O'Connor versus Oakhurst. Dairy First Circuit. Don't make me stop this car. Remember when you were a kid riding with your obnoxious brother in the backseat on a long family trip and you and your brother started arguing, then yelling and then fighting and finally your dad had had enough and he thundered like the voice of doom. Don't make me stop this car. Dad never actually stopped the car because you and your brother were so terrified of what would happen if he did. You behaved yourself. The First Circuit recently issued its own, don't make me stop this car warning. It happened after the defendant, a medical laser firm appealed the same issue for the fifth time, always making essentially the same argument. And that's not even counting the petitions for rehearing and for Sir Chiari. The court once again rejected the defendant's argument, the same one. It had been rejecting for years in a separate opinion, issued the same day. The court reluctantly decided not to impose sanctions on the defendant's lawyers, but it issued a Don't make me stop this car. Type warning noting quote, defendant's briefing recycles briefing from their previous appeal. The court thundered in its best dead like voice. This case is at an end and we will not be charitable to any additional attempts at prolonging it. Dad couldn't have said it better himself. The case is GEODynamics versus bio. In the First Circuit, the Steve Martin defense, those of a certain age will remember the all-purpose excuse provided by Steve Martin and his old standup routines. The I forgot excuse. When the IRS asks why you didn't pay your taxes, you simply say, I forgot. Well, proving again that truth is stranger than fiction. The United States government tried the I forgot defense in explaining its failure to turn over notes prepared by its star witness in the false claims case against Matter Care Nursing Homes ManorCare preparing to depose the government star witness Dr. Clearwater subpoenaed quote, all notes prepared by or for her. Dr. Clearwater produced no notes and said she didn't remember making any notes, but an employee testified that there were notes 131 pages of them when the government belatedly turned them over. Well, after Dr. Clearwater's deposition, ManorCare moved for sanctions. What was the government's response quote, Dr. Clearwater. For God, Steve couldn't have said it better himself. The court barred Dr. Clearwater from testifying and ordered the government to pay Manor Care's legal costs of pursuing the motion for sanctions with its star witness excluded. The government dismissed the case after eight years of litigation. The case is US

Speaker 2:

Xra Reik versus ManorCare in the Eastern District of Virginia. Maybe the yacht was the tip off in Henry the fourth, Shakespeare wrote that discretion is the better part of valor. The context was a battlefield and false staff was playing dead instead of fighting. But it's not just on the battlefield that discretion is a good idea. Being discreet is nearly always the safest bet. That's the lesson of a recent false claims decision in Missouri. Dr. Fang was a neurosurgeon in Cape Gerardo and he must have noticed that the distributors who sold the spinal devices for surgical procedures made hefty commissions. He encouraged his fiance, Deborah to become a medical device distributor. When she did, he ordered as much as$40,000 a day of medical devices from Deborah. Besides being engaged to Deborah, Dr. Fawn lived in a house she owned and he got to use properties owned by companies she controlled one of the properties was a yacht, and when people in Cape Gerardo see a surgeon sailing around in a yacht provided by his medical device distributor, they can't help noticing. Paul Cairns noticed and he filed a whistleblower case alleging False Claims Act violations. As Paul saw it, Dr. Fang was violating the anti-kickback statute, which meant that the bills from the hospital to Medicare and Medicaid for the medical devices were tainted. Dr. Fawn argued that he was innocent unless benefits from Deborah were the primary reason he bought from her, but the court ruled that if the benefits were even one reason he was guilty, the court denied Dr. F's motion for summary judgment. The case is US xra L Cairns versus DS Med in the Eastern District of Missouri. Well, that's it for this month's edition of the A H L A podcast series. Speaking of health law, I hope you enjoyed it. Check your A H L A Weekly and Connections magazine for the next edition of Speaking of Health Law.