Recent Medical Legal News
Current Issue - November - December 2011
Medicare fraud suspensions not being
strongly enforced
Regulators fighting Medicare fraud frequently suspend the licenses of Medicare providers, only to quickly reinstate them after a short and uninvolved appeals process.
The AP recently reported that the government’s private contractors tasked with
inspecting Medicare providers and collecting payments often communicate poorly
with the federal agency that runs Medicare, leading to gaps in the system that prevent
efficient shutdown of fraudulent activity. Medicare providers accused of fraudulent
activity often even continue to receive Medicare payments while they are under investigation. The government and its contractors often fail to even attend the appeals
hearings, allowing suspended Medicare providers to coast to a default victory.
More Deaths From Opioids Than Cocaine And Heroin
Combined
The number of overdose deaths from opioid prescription pain relievers (OPRs) in the United States has reached epidemic proportions and is now greater than fatalities from heroin and cocaine combined, according to a new report released by the Centers for Disease Control and Prevention (CDC).A big part of the problem, say CDC officials, is nonmedical use of prescription opioids. In 2010 approximately 12 million Americans age 12 or older reported nonmedical use of prescription pain killers in the past year. According to the report, enough prescription painkillers were prescribed in 2010 to medicate every American adult around the clock for a month. Although most of these pills were prescribed, many were diverted and ended up being abused.
When 'to Err' Is a Crime: The Criminalization
of Mistakes in Nursing
By Laurie Scudder, DNP, NP
Over the past few decades, healthcare systems have recognized that nonpunitive environments that stress
safety and error reduction are critical in keeping patients safe. At the same time, an opposing trend has
emerged in the law enforcement community. Philipsen examines recent legal trends and the potential harm to
the healthcare system that may result from criminalization of healthcare errors. A criminal focus discourages a
potentially guilty person from sharing information, and encourages this person to protect his or herself. This is
in contrast to "safety theory," which encourages nurses to report and share information about an act to develop
systems to prevent similar errors in the future.
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California Provides a New "Lift" to Health Care Workers
On October 7, 2011, Governor Brown signed new legislation (AB 1136) requiring general acute care hospitals
to maintain a safe patient handling policy and prohibiting the discipline of any health care worker who out of
concern for safety refuses to lift, reposition or transfer a patient. The "Hospital Patient and Health Care Worker
Injury Protection Act" amends the California Occupational Safety and Health Act of 1973 ("Cal-OSHA"), and,
effective January 1, 2012, will be added as Section 6403.5 of the California Labor Code. The new lifting law requires hospital employers to adopt an injury prevention plan for the purpose of protecting health care workers
from back and musculoskeletal injuries
Jury Awards $48.2M Verdict in SJS/TEN Case
On October 3, 2011, a Los Angeles jury returned a record-setting verdict against Johnson & Johnson and their
fully owned subsidiary McNeil Consumer Healthcare for $48.2 million, with pre-interest and cost of judgement
is expected to reach 60 million dollars. The lawsuit alleged that Motrin caused SJS/TENS or Stevens Johnson
Syndrome (SJS), also known as Erythema Multiforme, Leyll's Syndrome, and in its later stages, Toxic Epidermal
Necrolysis (TEN). SJS/TEN is a serious and potentially life-threatening disease that causes large areas of the skin
to become detached and lesions to develop in the mucous membranes.
One Way to Avert a Sky-High Malpractice Award
By Mark Crane, www.Emedicine.com
No one can predict with certainty what a jury will do during a malpractice trial. To guard against a runaway verdict that could expose a physician and his or her insurer to a multimillion-dollar award, defense attorneys may seek
a compromise called a high-low agreement. For example, when a New York nursing home was sued for malpractice, the insurer and the plaintiff agreed to a high-low of $75,000/$750,000. That means, no matter what the jury
awards, the plaintiff won’t get less than $75,000, but neither will he get more than $750,000. The plaintiff's family
was worried that they would get no award, and the nursing home was worried that they would be socked with a
huge award. The agreement turned out to be a great deal for the nursing home, because the jury awarded over $18.5
million. The case settled for $750,000
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Honoring Patients’ Right to Freedom
of Choice of Provider
By Elizabeth E. Hogue, Esq., www.elizabethhogue.net
Anecdotally, hospitals are not honoring patients’ right to freedom of choice of post-acute providers as they
are required to do by federal law, especially according to agencies that are not owned by or affiliated with hospitals. Hospital-based agencies often tell a completely different story. Some of them are certain that they are not
getting their fair share of referrals of discharged patients. The horror stories are legion! We all certainly recognize that the stories must be carefully investigated in order to determine what actually happened. A review may
indicate that the facts are not quite as they seemed initially, for better or for worse.
A Fire Safety Primer for Nurses
By Sandie Colatrella, RN, BSN, CLNC and John E. Baverso, AIA, NCARB
You are working 11-7 and the night shift quickly becomes a nightmare. The unit is short staffed, everyone scurrying around task to task, when the fire alarm and strobe lights go off in your unit. Gut reaction, false alarm.
Then the sprinklers go off. Now what? You have 30 patients-- many have IVs or are bedridden - some cannot
even follow instructions. You are in charge when reality strikes - it is not a drill – there is a fire in the unit kitchen.
How will you move patients from the point of potential harm to an exit corridor and out of harm’s way?
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