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.
This episode of A H L A. Speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.
Speaker 2:Hi, I'm Norm Taber with this month's edition of the Lighter Side of Health Law. Alexa in the doc. Alexa is in trouble again, lawsuits in California, Massachusetts, and Illinois accuse her of eavesdropping on people who had no idea she was listening, including conversations about personal health information. The latest suit is a class action in Washington state. According to the complaint, Alexa Eavesdrops on a household, an average of 1.5 times a day, and sometimes as many as 19 times. And it's not just Alexa herself. That might not be so bad, but it's also Alexa's coworkers at Amazon, actual human beings, and they don't just listen and then forget about it. The complaint says that Amazon has a warehouse where they've stored tens of millions of conversations. There's no truth in the rumor that the whistleblower was Siri. The case is Scott versus Amazon Western District Washington. Everybody's a comedian. There seems to be at least one every week a frustrated comedian in healthcare who can't resist sharing her comedy talent with the world. This time, it's Nurse Kelly Morris at the Citadel Nursing Facility in Winston-Salem, North Carolina. Kelly posted videos of herself at her comedic best on TikTok. She's in uniform inside the facility as she pretends to engage in various forms of patient abuse like Overmedicating patients. So they'll sleep all the time. Pretty funny, huh? Well, not to family members of the patients they complained and not to the people who run the facility. They suspended. Kelly, who says she's baffled at anyone, would be troubled by her fun and games. On the positive side, Kelly did get the attention. She graved the power of labels. Earlier this month, there was some fascinating testimony by the head of Stanford's Director of Addiction Medicine in the giant opioid addiction case brought by New York State and two Long Island counties. She showed how the manufacturers used loaded words to shame doctors into prescribing more opioids. And the examples were hair raising. Sales reps were taught to tell physicians that physical addiction is not really addiction. That calling it addiction was a quote mistake and that it should be called a pseudo addiction. The idea that taking opioids long-term could cause addiction is quote unscientific. So if you don't prescribe opioids over a long period out of fear of addiction, you aren't following science. And my favorite, if a patient dies from taking opioids, it should always be called an overdose, even if it was the prescribed amount. You can't make this stuff up. Oh, wait a minute. They did make it up. The overly polite radiologist. In April, 2010, Linnell Green's doctor ordered a routine mammogram radiologist, Kenneth Bloomberg read the mammogram and sent his report to the doctor. Imagine his surprise four years later, when Lynelle's Estate sued him for malpractice and wrongful death. What gives Kenneth's lawyer responded? Kenneth's ended when he sent his report to the doctor and nobody claims there was any error in the report. Ah, but his duty did not end there. Insisted the plaintiff's lawyer, all his reports end with the signoff quote. Thank you for the opportunity to participate in the care of this patient. That's an admission that he was part of Lionel's care team. Happily for Kenneth, the appellate court held that quote, politeness alone will not give rise to a heightened duty of care. Kenneth was awarded summary judgment. The case is Man versus Noir. Supreme Court of New York Appellate Division. What's a physical loss if you need to close your business or limit the number of patrons because of covid? Do you have a claim under your property insurance policy? Is that a physical property loss? Countless cases have wrestled with the issue. The overwhelming majority have ruled in favor of the property insurer on the grounds that there must be physical damage to the property in order to trigger coverage. But in Pennsylvania, a judge has ruled for a second time in favor of a business owner. First, it was a dental practice. Now it's a tavern. The judge ruled that if covid and social distancing measures whether governmentally imposed or not limit a business's use of its property that qualifies as a property loss under the property insurance policy. Why? Because the business owner has suffered partial loss of the use of the property. I'm happy for the tavern owner, but this decision makes me wonder if my driver's license is suspended for six months. Do I have a claim under my auto insurance policy? After all, I've lost the use of my car for six months. The case is mc miles versus area insurance. Allegheny County Court of Common plea, the high cost of name calling. If you don't think that name calling can be costly. Just ask attorney Scott Lesinger. He won$37 million for his client against RJ Reynolds tobacco only to see it disappear when an appellate court reversed the judgment and ordered a new trial. Why? Solely because Scott seemed unable to curb his tongue during closing argument, not content to argue simply that Reynolds had acted negligently and was responsible for his client's health problems. Scott insisted on calling Reynolds. Quote, A soulless enterprise of death and rotten inside the appellate court could find no explanation for the fiery language except a desire to inflame the jury, which is impermissible. The case is RJ Reynolds versus Mauss, Florida. Fourth district Court of Appeals kidney, kidney. Who's got the kidney? The good news that university hospitals in Cleveland is that the kidney transplant went off without a hitch and the patient is doing well. The bad news is that they put the kidney in the wrong patient. So the right patient has to wait for another kidney. As a hospital spokesman said, lucky for him. God gave everybody, two of them our schizophrenic country every day. The New York Times publishes the national percentage changing Covid cases over the past 14 days on July 14th. The figure was a frightening 109% increases over the past two weeks. Pretty scary. That same day. Becker's Hospital Review reported that the Tennessee Department of Health has halted all youth vaccine outreach, including Covid vaccine. It's also ending all Covid vaccine events on school property. And just to make the point absolutely clear, the department fired its director of immunization programs for encouraging covid vaccinations for teens, property loss theory number, whatever. It seems as though at least once a week since the COVID outbreak, there's been a new credible theory on why a business should be able to collect under its property insurance policy, not business interruption, but property. Almost all of them have failed. Here's a brand new theory courtesy of Planet Hollywood, which operates over 200 restaurants under various brands. The theory is A, it's an all risk policy except only the exclusions named in the policy. B, we were forced by state and local governments to close down for months. And C, there's no exclusion for government order shutdowns. So we're covered. Q E D. What does the insurer Zurich say about that? A, your theory is certainly quote artful. We'll give you that, but B, it's a property policy and your property is just fine. I'll let you know how it turns out. But my money, not my sympathy, but my money is on Zurich. The case is Planet Hollywood versus Zurich American Middle District, Florida. A new nightmare for lawyers. Did you ever have that nightmare where you're naked in public or that you were taking a final exam that you were totally unprepared for? If so, you're not alone. Those two nightmares are not universal, but they are extremely common. By the way, I've always wondered, do people who didn't go to college have that final exam? Dream? Well, here's a nightmare, especially tailored to lawyers. What if you were arguing a case before a panel of federal judges and you were arguing the wrong case? While that nightmare came true for Chad Hatfield, he was arguing his fibromyalgia case before the ninth Circuit and by the way, doing a crackerjack job. Then one judge interrupted him to ask, could you make sure you got the right case in front of you? And by golly, he didn't. He was supposed to be arguing a case about diabetes. The court gave him 10 minutes to regroup. Well, that's it for this month's edition of the Lighter Sign of Health Law. I hope you enjoyed it. Check your A H L A Weekly and Health Law Connections Magazine for the next edition.
Speaker 1:Thank you for listening. If you enjoy this episode, be sure to subscribe to A H L A speaking of health law wherever you get your podcasts. To learn more about A H L A and the educational resources available to the health law community, visit American health law.org.