The Lighter Side of Health Law – September 2018

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.

Transcript

Speaker 1: 0:00

Hi, I'm Norm Taber, host of the A H L A podcast series, the Lighter Side of Health Law. I hope you enjoyed this month's edition. Protecting Men from Ovarian Cancer. To say Mona Estrada is overly cautious would be an understatement. She apparently wants to protect men from ovarian cancer, even though of course men don't have ovaries. Mona bought and used Johnson and Johnson Baby Powder for 60 years. The fact that she kept using it for so long strongly suggests she was satisfied. But then Mona read about cases alleging that the baby powder caused ovarian cancer, and she said to herself, if I'd known about this risk, I never would've bought the darn baby powder. And this being America, she decided to make a federal case out of it, and not just any case, but a class action. Mona sued on behalf of all the women in the United States who wouldn't have bought the baby powder if they had known about the ovarian cancer risk. But Mona didn't stop there. She also sued on behalf of all the men who bought the baby powder. Why? Presumably because if those men had known the baby powder might give them ovarian cancer, they wouldn't have bought it. Shockingly, the Federal District Court dismissed Mona's claim for lack of standing on appeal. The Third Circuit upheld the dismissal ruling that Mona's quote, buyer's remorse was not an injury recognized under Article three of the Constitution. Sadly, therefore, the men of America won't be able to rely on Mona to protect them from ovarian cancer. The case is Estrada versus Johnson and Johnson Third Circuit. Why did the representative from Stryker strike her? The main thing about this case is it's fun to say Stryker. That's S T R Y K E R is a medical device company in Texas. An or nurse sued Stryker alleging that it's representative struck her during a surgical procedure. So the question was, did the rep from Stryker, Stryker, the rep, says he used his foot to give her a gentle tap to the knee to get her attention. The nurse says it was a kick and it re-injured her already Bumed knee. Why did he use his foot? He says his hands were full. The trial court gave Stryker summary judgment ruling that there wasn't sufficient evidence to submit the question. Did the rep from Stryker, Stryker, but the Court of Appeals reversed ruling that there was sufficient evidence to submit the question, did the rep from Stryker Stryker, the case is Cavazos versus Stryker, Texas Court of Appeals 13th District the we committed this crime before defense. Generally, when a company is accused of committing a crime, the defense is, your Honor, we did not commit the crime. But when an adult Diop PRA company was accused of defrauding Medicaid, the defense was the opposite. The defense was, your Honor, we simply repeated the same crime we got caught committing before. Why would the defendant di Pra company adopt this line of defense? The answer can be found in the false claims Acts prohibition on whistleblower suits that are based on allegations already the subject of a whistleblower suit. Here the defendant noted that its scheme namely charging Medicaid. The sticker price it paid for diapers without revealing enormous rebates from the supplier had been the subject of a case. It paid millions to settle back in 2011, but the court rejected the defense noting that the old case involved

Speaker 2: 2:58

A different supplier and different time periods. The case is US Xra Hermann versus Coloplast Corp. District, Massachusetts. When is a report not a report? Have you ever assumed you knew the meaning of a word, but the more you concentrated on it, the less sure you were? It's that way. With the Word report in i's anti-retaliation provision. The provision prohibits retaliation against an employee who quote reports a violation. When a pregnant woman came to the Southwest Regional er, she was referred to another hospital. Over the following days, the Southwest staff met to discuss whether it had violated him. The consensus was that it had violated the act but need not informed state authorities. Nurse Marie Gillispie disagreed with the decision not to inform the authorities and said so when she was fired, she sued under the anti-retaliation provision alleging she had been fired for reporting a violation internally. So the question was whether Mary had reported the violation internally, the third circuit rule that she had not it's reasoning. Marie spoke up only after the staff was well aware of the incident and had discussed it at meetings. So the answer to the riddle is that a report is not a report when it doesn't provide information the recipient doesn't already have. The case is Gillispie versus Regional Care Hospital Partners. Third Circuit, what's in a name. A couple of years ago, optometrists all over the country noticed that without their knowledge, chase Amazon Visa credit card accounts had been opened in their names. Something that requires personal information, including social security numbers and dates of birth. It didn't take long for their online discussions to reveal one common link. All of them had given their personal information to the National Optometry Board when applying to sit for board exams. When three of the optometrists filed class actions for breach of privacy and related wrongs, the board moved to dismiss arguing that the plaintiffs couldn't trace the breach back to it. That it was pure speculation to say the board was the source of the breach. The district court bought the board's argument and dismissed, but the Fourth Circuit reversed noting that the names on the credit cards pointed to the board as the source of the breach. For example, the cards for two of the three named Women plaintiffs were issued in surnames. They had given the board years ago, but had long ago changed because of divorce or remarriage. It was unlikely that any other organization would be the source of those obsolete names. The Fourth Circuit reversed the dismissal and sent the case back to the lower court. The case is Hutton versus National Board of Examiners in Optometry. Fourth Circuit, the unkindness cut of all. When Brutus stabbed Julius Caesar, Shakespeare called it the most unkindest cut of all because it was delivered by a close friend, Beth Israel Deaconess Hospital in Massachusetts was the setting when pharmacist Mary Taki delivered a cut to a coworker. When the coworker arrived at work with windblown hair, Mary said, quote, I can fix your hair for you. The coworker responded, sure, go ahead. And Mary proceeded to cut her hair. When word of the haircut reached hr, a manager asked the coworker about the incident.

Speaker 3: 5:56

The coworker said she hadn't intended that Mary would cut her hair, only fix it. HR confronted Mary telling her she would be fired for, are you sitting down workplace violence? But HR went on. She could avoid firing if she signed a resignation agreement Mary signed. When Mary later sued the hospital for breach of contract under the Labor Management Relations Act, the hospital moved for summary judgment on the grounds that Mary had failed to exhaust grievance procedures. Under the collective bargaining agreement, the court agreed with the hospital and awarded it. Summary judgment. If there's a lesson, maybe it's don't give a coworker a free haircut unless she signs a waiver. The case is Taki versus Beth Israel. Deaconess District Massachusetts. The downside of being a three-time winner, you don't hear much about three time winners, three-time losers, sure, but three-time winners, not so much. Well meet Nurse Cecilia Ola. She's a three-time winner. She's also experienced in clinical documentation and case management, but she's out of a job and her lawyer says that being a three-time winner has made her unemployable. Why? Because her three wins were all as a false Claims Act whistleblower against her last three employers, all health systems. The suits resulted in 32 and a half million dollars in settlement with Cecilia getting somewhere between five and$8 million. But the downside of being a three time whistleblower winner is that health systems don't seem eager to hire them. Go figure. Big Pharma made me do it. Remember comedian Flip Wilson back in the seventies, his character Geraldine had an all-purpose excuse for misbehavior. The devil made me do it. Union organizer, Henry Green tried a variation on that theme when he faced sentencing for five years of embezzling union funds. As Henry saw it, it wasn't his fault. Perdue Pharmaceutical made him do it. Purdue manufactures Oxycontin and Oxycontin is what Henry bought with the money he embezzled. So Perdue is to blame for the embezzlement and Henry should not go to jail. Q e d. The judge was not impressed. She sentenced Henry to six months behind bars, one year of supervised release and restitution of the money he stole. The case is US versus Green District, Massachusetts. Well, that's it for this month's edition of the Lighter Side of Health Law. I hope you enjoyed it. Check your A H L Weekly and Connections Magazine for the next edition.