It the fast-paced world of health care, it is easy to forget the simple things – like notifying your state licensing board about address changes. It seems trivial, but there may be consequences for a physician who fails to update her physician profile.

State medical boards have the responsibility and obligation to protect consumers of health care by ensuring that all licensed physicians comply with the laws and regulations related to the practice of medicine. These boards have a process for the public to submit formal complaints, and, once a complaint is made, the board conducts an investigation that includes contacting the physician for a response. But what happens when the physician does not respond?

In my practice of representing physicians before state boards, I have seen instances where the board has requested a response from a physician, and then was unable to locate her for months or a year or more. This is often due to the physician making a move and failing to update her address or physician profile. While this may seem like an innocuous oversight, it can result in significant consequences. In fact, many states have statutes and regulations in place mandating that physicians update their addresses with the relevant medical board within 30 days of relocating. Many physicians, however, do not realize the importance of updating their addresses.

A frivolous complaint made by a disgruntled patient can be easily disposed of with a conscientious response. However, if the physician fails to update her address, the board might not be able to contact her, resulting in a failure by the physician to respond in the requisite amount of time. Such a failure often leaves the board no choice but to take action against the physician, even where the complaint is obviously specious. The failure of the physician to update her status in and of itself could have a significant adverse effect, including public reprimand, monetary fines, impact on reputation, and loss of the ability to attract new patients, acquire affiliations or even obtain insurance coverage.

Another and more critical example is when a physician has an old address on file at the time of license renewal. If a physician does not get a renewal application and fails to renew her license, continuing to practice medicine is in fact practicing medicine without a license. Such an oversight is significant and could be career-ending.

With the prevalence of email communication, licensing boards are often able to notify a physician of a complaint or other issue through alternative methods. While the requirement for maintaining a current physical address is customary, the failure to update a change in electronic addresses is also problematic if an important email is not delivered and/or ignored. Being at the mercy of a state medical board for leniency after failing to respond in a timely manner to an inquiry due to a failure to update any address can be difficult.

A word to any wise professional – make sure the address on file with your state licensing board is up to date.

I will be attending the 2015 DRI Medical and Health Care Liability Seminar, March 12–13, 2015, in San Francisco, where Michael V. Favia, Esq. will present “Defense of Health Care Providers in Administrative Actions.” If you will be there, let me know.

This blog was originally posted to the Professional Liability Advocate blog. Click here to read the original entry. 

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My DRI Seminar Experience

Posted on January 7, 2015 10:10 by Denise Holzka

While I’m a bit freaked out to acknowledge this milestone, just about ten years ago I attended my first DRI Medical Liability and Health Care Law Seminar.  The following year I was given the opportunity to present at the Young Lawyers Breakout session.  Fast-forward several years later and I was speaking at the main gig for the not-so-young lawyers.  Presenting at both of these conferences, and attending many more, was instrumental in my development as a litigator in this field.  While the preparation of the materials and the presentations added a bit of stress to my otherwise stress-free existence as a New York trial lawyer, it was the productive type.  I wanted to ensure that if I was about to take up an hour of my peers’ time, that I better be a good presenter and have some incredibly useful information to convey.  Although I am modest, I nailed these presentations!  

Presenting and attending DRI’s Medical and Health Care Law Seminar has truly made me a better lawyer and advocate for my clients.  Many of the individuals I met the first time I presented have become life-long friends and colleagues.  As such, I am able to reach out to a diverse network of friends from all over the country whether to discuss business, experts, complex medicine or locate an establishment in their neighborhood to get an adult beverage.  

Personally, perhaps most rewarding, presenting at this seminar allowed me to take the time to appreciate the really important work that we do and the medical institutions and healthcare practitioners we represent.  We are generally so caught up in our work that we forget that we are an integral part of the delivery and quality of medical care.  It is a privilege to practice in this field as it was to present at prior DRI Medical Liability and Health Care Law Seminars.  I encourage you to attend this seminar with assurance that you will meet other professionals who are passionate about the work we do and will undoubtedly provide you with information to hone your skills.

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Catastrophic injury cases with expensive life care plans pose significant exposure issues to our clients. The Affordable Care Act guarantees consumers the right to purchase health insurance and caps annual out-of-pocket medical expenditure, thus limiting future medical care costs for plaintiffs. The enactment of the ACA should mean that future medical expenses are limited to the cost of the plan to the plaintiff. But, do the courts view the ACA as collateral source, meaning that the plaintiff can still recover all of the future medical costs, despite being covered by insurance?

Come to the DRI Medical Liability and Health Care Seminar at the Parc 55 Wyndham San Francisco, CA from March 13–15, 2015, and listen to the presentation by Victor A. Matheson, PhD and Jon Karraker, CPA discuss these issues and more. 

Resister today at; don’t forget to book your hotel room at the Parc 55 Wyndham.

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Is There A Doctor in the House?

Posted on March 7, 2014 03:41 by Patrick J. Kearns

The Patient Protection and Affordable Care Act, often referred to as the “Affordable Care Act” (ACA), or perhaps more commonly “Obama Care,” has had no shortage of media coverage and controversy since it was signed into law nearly four years ago (Yes, it has been 4 years! President Obama signed the Act into law on March 23, 2010).  Several aspects of the ACA have been, for better or worse, more “visible” than others; such as the heavy focus on the “individual mandate,” i.e. the requirement that uninsured citizens obtain health insurance or pay a penalty; the impact on employers and small businesses; and the more recent website debacle where many people seeking to sign up for health insurance on the newly created exchanges were unable to do so due to technical issues with the ACA’s website. 

One of the less discussed issues with the ACA however, is the potential for a massive provider shortage.  At its basic level, one of the primary purposes of the ACA is to increase the number of insured Americans. Indeed, according to various estimates, the implementation of the ACA is anticipated to provide insurance to 25-30 million additional individuals who would otherwise not be insured: “[T]he Affordable Care Act will also ensure that every American can access high-quality, affordable coverage, providing health insurance to nearly 30 million Americans who would otherwise be uninsured.” (Quoted from 2014 Funding Highlights bulletin published on Coupled with provisions providing for free or reduced cost annual exams; greater Medicare coverage; increased coverage for younger adults; and increased coverage for preventative care and testing such as mammograms and colonoscopies; that means more insured people utilizing more health care services. Consequently, the question arises of whether we have enough physicians and providers to administer the increased health care demands?  

The Obama administration has acknowledged this potential and recently proposed a Fiscal Year 2015 Budget for the Department of Health and Human Services which attempts to address this contingency, at least in part. According to the HHS’s “Fiscal Year 2015 Budget in Brief” “[t]he Budget makes new and strategic investments in our nation’s health care workforce to ensure rural communities and other underserved populations have access to doctors and other providers. In total, $14.6 billion will be invested in three key initiatives: $4 billion in expanded funding for the National Health Service Corps, $5.2 billion for a new Targeted Support for Graduate Medical Education program, and $5.4 billion for enhanced Medicaid reimbursements for primary care. (U.S. Dept. of HHS “Fiscal Year 2015 Budget in Brief”;

While the long-term idea behind the ACA may be to reduce health care costs and the need for excessive or increasing health care services (i.e. an insured population is presumably healthier and will therefore require less health care), will we have enough physicians, nurses, and other providers necessary to get us healthier in the short term? 

The full impact of the Affordable Care Act, positive or negative, remains to be seen. You can learn a great deal more about the Affordable Care Act, the difficulties with its implementation, and its impact on you and your practice, at DRI’s 2014 Medical Liability & Health Care Law Seminar, taking place in Las Vegas on March 20–21, 2014 at the Cosmopolitan Hotel.  Among many top-notch presentations at this year’s seminar you will not want to miss Kimber Lantry, Executive Vice President for AXIS Insurance’s Health Care Unit, give a fascinating presentation on “The Unintended Consequences of the Affordable Care Act.”

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If a nurse discloses confidential patient information to a third party without authorization, and for reasons unrelated to the patient’s treatment, can the medical company that employs the nurse be held strictly liable for breach of fiduciary duty to maintain the confidentiality of personal health information?  New York’s highest court has said no.

In Doe v. Guthrie Clinic, the plaintiff was treated at the Guthrie Clinic Steuben (the “Clinic”) for a sexually transmitted disease (“STD”).  A nurse at the Clinic recognized plaintiff as the boyfriend of her sister-in-law, which apparently prompted the nurse to access plaintiff’s medical records. During plaintiff’s treatment, the nurse sent six text messages to her sister in law discussing the details of plaintiff’s medical condition, i.e., his STD.  Within five days of his treatment, plaintiff learned of these text messages and called the Clinic to complain about the nurse’s behavior. The Clinic fired the nurse.  It also sent plaintiff a letter confirming that his confidential information had been improperly accessed and disclosed, and stating that appropriate disciplinary measures had been taken.

Plaintiff filed a diversity action in New York federal court against various affiliated entities that allegedly “owned, possessed, operated, staffed and/or controlled” the Clinic.  The District Court dismissed plaintiff’s eight causes of action, most of which were based on respondeat superior, and plaintiff appealed.  The United States Court of Appeals for the Second Circuit affirmed the dismissal of most of the claims.  It held that because the nurse sent the text messages purely for personal reasons that had nothing to do with plaintiff’s treatment, the nurse’s actions “cannot be imputed to the defendants on the basis of respondeat superior.”  Doe v. Guthrie Clinic, Ltd., 710 F.2d 492, 495-96 (2nd Cir. 2013). However, plaintiff argued that “medical corporations” should be held “separately and strictly liable under New York law for breaching their fiduciary duty to keep personal health information confidential.”  Id. at 496.  With minimal case law on this important issue, the Second Circuit certified the following question to the New York Court of Appeals (New York’s highest state court):

Whether, under New York law, the common law right of action for breach of the fiduciary duty of confidentiality for the unauthorized disclosure of medical information may run directly against medical corporations, even when the employee responsible for the breach is not a physician and acts outside the scope of her employment?

The New York Court of Appeals ruled that liability does not extend to a medical corporation under these circumstances.  It held that “a medical corporation’s duty of safekeeping a patient’s confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment.”  Doe v. Guthrie Clinic, No. 224, 2014 WL 66644 (N.Y. January 9, 2014).  The Court noted, however, that where an employee discloses confidential patient information outside the scope of his or her employment, the plaintiff is not without a remedy against the medical corporation.  The plaintiff can still assert direct claims against the medical corporation for negligent hiring, training, and supervision, and for failure to establish adequate policies and procedures for safeguarding confidential patient information.  

This is an important case for medical corporations as it firmly restricts their fiduciary liability for an employee’s unauthorized disclosure of confidential patient information.  At the same time, with several direct causes of action still available to plaintiffs, there is sufficient incentive for medical corporations to diligently establish and enforce policies that protect patients’ personal health information.

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Affordable Care Act—Pros and Cons

Posted on December 17, 2013 08:28 by Kenneth M. Battle

Aside from the political propaganda that has permeated our collective consciousness since its inception, what do we really understand about the Affordable Care Act?  The overall theme and purpose for the Act is making health care affordable for the masses, hence the name.  Does the Act accomplish its set purpose and goals?  Will the Act have side effects that forever change the landscape of health care?  How will the Act impact medical liability and health care law, if at all?

Some of the major pros, if you will, include: 1) access to affordable, quality health insurance for tens of millions of people; 2) prevention of dropping people from health coverage when they get sick or make an honest mistake on their application for coverage; 3) prevention of denying coverage to those we are already sick; and 4) young adults are allowed to stay on their parents health care plan until they reach the age of 26.  There are numerous others, but for the sake of discussion I picked a few to list here.

Some of the major cons include: 1) higher taxes for the wealthy, in order to help pay for implementation of the Act; 2) insurance companies are forced to provide coverage for sick people, which likely increases health care costs for everyone else; 3) there’s a mandate that forces individuals to obtain health care coverage or potential pay a fee for failure to do so; and 4) while the Affordable Care Act focuses heavily on providing coverage for all, the by-product is an increase in the cost of care.

What are your thoughts on ways in which the Act will affect our profession, and our practice areas?  

Learn more about the Affordable Care Act at DRI’s 2014 Medical and Health Care Liability Seminar, March 20-21, at the Cosmopolitan Hotel in Las Vegas. With two days of cutting edge instruction on medical and legal topics, the seminar will include a presentation focused on “The Unintended Consequences of the Affordable Care Act”. Register today

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Categories: Medical Liability | Seminar

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The American Psychiatric Association's recent changes to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) provide another arrow in the quiver for plaintiffs seeking recovery for psychological injury. These changes are especially relevant to insurers and businesses defending against personal injury claims where post traumatic psychological disorders are at issue. Defending against claims for psychological injury can be a daunting task considering the subjective nature of these injuries. Unlike physical injuries or deformities, the fact that a plaintiff is depressed, anxious, fearful or withdrawn is usually not overtly recognizable during the course of a two or three day trial.  That leaves plenty of room for jurors to speculate on the extent of the plaintiff's psychological injury.  

The DSM-5 manual will likely ease the task of proving the existence of a psychological injury by broadening the diagnostic criteria for many psychological disorders, such as acute stress disorder and posttraumatic stress disorder (PTSD).  For example, persons allegedly suffering from PTSD are no longer required to prove that they experienced or witnessed a traumatic event first-hand. Now, plaintiffs could potentially use DSM-5 to support their claims of PTSD even if they experienced a traumatic event indirectly, such as through a phone call or watching a breaking news story about a loved one's death or injury.  In addition, PTSD is now considered "developmentally sensitive," which means the diagnostic thresholds for diagnosing PTSD are lowered for children and adolescents.  

In short, the revamped DSM-5 will likely provide plaintiff attorneys with more ammunition to prove that their clients have suffered an array of psychological injuries as a result of a traumatic event.  To adequately defend against these claims, defense attorneys must familiarize themselves with the revised diagnostic criteria and try to use it to their advantage.  This will require a more fact-intensive approach to defending against these claims by digging deeper into plaintiffs' therapy records to prove that they are not suffering from any number of symptoms listed under a given psychological disorder.  Although the revised DSM-5 will make psychological disorders easier to prove, the defense bar must use DSM-5's improved clarity to its advantage.

About the Author:

This article was written on August 14 by Ian Lambeets, Esq. of Sands Anderson PC's Coverage & Casualty Litigation Group, a law firm specializing advising and representing corporations, individuals, insurance companies, and self-insured entities in litigation involving personal injury, wrongful death, policy coverage, product liability, ERISA, aviation and transportation liability, premises liability, professional liability, toxic waste, environmental claim defense and many other areas of significant liability exposure.  If you have questions about this post do not hesitate to the author at or any lawyer at the firm at (804) 648-1636.  

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On Monday, July, 8 2013 a Pennsylvania federal judge ordered a mass of NFL concussion cases to mediation.  The cases were brought by more than 4,000 former National Football League (NFL) players accusing the league of negligence and concealing the dangers of concussions.  The players say the league has known for years, or even decades about the long-term dangers of concussions.  The league responded that it released warnings based on the medical research available at the time.

The NFL filed motions to dismiss the cases in which it denied wrongdoing and stated that player safety is governed by the collective bargaining agreement.  The league contends the parties negotiated those terms and the issue is to be resolved in a confidential arbitration.  The players argue that the concealment was fraud and was not contemplated by the collective bargaining agreement.

U.S. District Judge Anita Brody originally planned to rule on the motion to dismiss on July 22, 2013.  However, she now says she will not rule on the motion until at least early September.  The judge says this will give the mediator time to bring the sides closer together.  Layn Phillips, a retired federal judge, has been appointed as the mediator.  Phillips cannot make a binding decision, and any side can choose to stop whenever it wants; however, the judge hopes the continued negotiations will result in a settlement.  

First, Phillips will meet with both sides’ counsel to hear the arguments on each side.  Then he will go back and forth with each side individually to try and strike a deal that works for both parties.  When Phillips reports back to the judge on September 3, 2013, he can recommend going back to court or ask for more time to negotiate.

Neither side commented on the decision.  The judge ordered the sides to refrain from publically discussing the mediation.  

Some commentators think the order to mediate is a signal that the case has a chance to settle.  Settling could prevent the NFL from turning over records that may harm its public image.  Additionally, it would save a lot of time and expensive litigation because the suit could drag on for years.

Yet, there are still those that have their doubts.  Gabriel Feldman, the director of the Sports Law Program at Tulane University said, “[i]t will be a great feat for the mediator to settle the case. He might bring them closer, but to what? This is complex litigation.”  He would be “surprised at this earl a stage for the N.F.L. to give a large settlement.”

We will have to wait until September 3 to see what happens.  The case is In re National Football League Players' Concussion Injury Litigation, U.S. District Court for the Eastern District of Pennsylvania, No. 12-2323.

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On March 27, 2013, a jury in federal district court in Bridgeport, Connecticut awarded Cara Munn, a 20-year-old woman who formerly attended the Hotchkiss School  in Lakeville, Connecticut, $41,750,000 in a case styled Orson D. Munn III et al. v. The Hotchkiss School, No. 3:09cv0919 (SRU).  The case raises important issues concerning "duty" and "assumption of risk."

The jury determined that Hotchkiss, a prestigious prep school, was negligent for two reasons: (1) in failing to warn plaintiff before or during a school sponsored trip to China during the summer of 2007 about the risk of insect-borne illness on the trip; and (2) in failing to ensure that plaintiff used protective measures to prevent infection by an insect-borne disease while visiting Mt. Pan in China.

In an article appearing in the Connecticut Law Tribune (Vol. 39, No. 13), titled "Tick Bite Leads To Big Verdict," it was reported that the school was faulted specifically  for not warning plaintiff (and her parents) that she would be traveling in mountainous and forested terrain. As a result, the jury determined that the plaintiff was not aware that she had to protect herself from insects by wearing bug repellent, long sleeve shirts and trousers, and by avoiding brushy undergrowth.

According to Plaintiffs' Amended Complaint, Ms. Munn's parents had Cara flown back to the United States in July '07, where she was hospitalized for several weeks at Weill Cornell Medical Center in the pediatric ICU and later at the Rusk Institute for extensive rehab.  As a result of her severe encephalitis, plaintiff suffered severe neurological and motor injuries, including permanent loss of speech. 

The case, which will almost certainly be appealed, raises significant issues concerning duty and the assumption of personal responsibility by parents who agree to have their child travel abroad for educational purposes. Apart from the obvious differences in food, culture and living conditions, traveling abroad carries many potential risks, some of which are foreseeable and some of which are not. Stepping back from the facts presented by this particularly tragic case, should a high school be held responsible for failing to prevent a student from being bitten by a tick in China? What if the tick had bitten her during a field trip to Central Park?

Assuming that the Second Circuit upholds this verdict, what does this case portend for high schools and colleges that plan educational trips abroad? Is there some bright line test that would provide guidance to a school evaluating the safety concerns of its students? Short of wrapping all of their students in cocoons and keeping them closely monitored in classroom settings, how can any school protect against the kind of unforeseen liability presented by this case?  

Hotchkiss' Answer to Plaintiffs' Amended Complaint states that plaintiffs' claims should be barred by the doctrine of assumption of risk.  The school argues that plaintiffs voluntarily assumed the risk of travel to China as evidenced by their execution of the pre-trip Agreement, Waiver, and Release of Liability.  In this agreement, plaintiffs agreed that Hotchkiss "would not be responsible for any injury to person or property caused by anything other than its sole negligence or willful misconduct" (emphasis added). Would legal weight did the court give to this release? 

Based upon the Verdict Form presented to the jury, it would appear that the trial court gave short shrift to the language in the release.  The jury was asked the following questions: (1) Was one or more of Hotchkiss' negligent acts or omissions a cause-in-fact of Cara Munn's injuries; and (2) Was one or more of Hotchkiss' negligent acts or omissions a substantial factor, that acting alone or in conjunction with other factors, brought about Cara's injuries? 

Those inquiries are a lot different from asking whether the jury finds that Hotchkiss' "sole negligence or willful misconduct" caused the injuries.  Although the jury determined that plaintiff did not contribute to any degree whatsoever in causing her injuries, it was not asked to consider whether other intervening factors played any role in causing Cara's injuries.

There are circumstances when a school can and should be held responsible when things go wrong on a school outing.  Three examples come quickly to mind: (1) sending kids into a war zone despite State Department warnings; (2) sending kids abroad into an epidemic earlier identified by the CDC; or (3) taking non-swimmers for an ocean swim outing without proper supervision. 

How is Munn different from these scenarios?  Is a random bug bite as foreseeable, if at all, as the kinds of risks discussed in the three scenarios above? According to Hotchkiss' summary judgment memorandum, the CDC reported that plaintiff was the first U.S. traveler ever to have reported TBE after traveling in China. Moreover, no U.S. traveler since plaintiff has developed the disease.  Therefore, how unreasonable was it for Hotchkiss not to take precautions against a risk of harm that arguably had such a slight likelihood of taking place?  Shouldn't plaintiffs have had to prove that the defendant was on prior notice of the existence of circumstances that could give rise to an injury? 

Plaintiffs' expert, Peter Tarlow once led a group of children, including his own son, on a tour of Israel.  If a child on that Israel tour had been unexpectedly assaulted by someone holding anti-Zionist views, would Dr. Tarlow expect to be held responsible for any resultant injury because he was "on notice" of decades of endemic unrest in the region? 

Two strong CT trial lawyers squared off against each for this eight day trial--for the plaintiffs, Antonio Ponvert of Koskoff, Koskoff & Bieder, one of the New England plaintiff bar's preeminent firms, and for the defendant, Penny Q. Seaman of Wiggin & Dana, one of Connecticut's oldest and most accomplished firms.  The bar should expect to see excellent post-trial briefing as events unfold.  

*This was originally posted on April 5 on Toxic Tort Litigation Blog. Read the current post here

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On March 11, 2013, the National Football League and the General Electric Co. announced that they are teaming up to create a Head Health Initiative that will provide $60 million dollars to assist leading neurologists in researching traumatic brain injuries and developing technology able to monitor these ailments.  $40 million will go towards developing imaging technologies, and the remaining $20 million will be available to others who seek to prevent, identify, and develop treatments for brain injuries.  Athletic apparel company Under Armour will also be providing $5 million dollars in support for the cause.

Jeff Immelt, GE Chairman and CEO, indicated that scientific support for the research would be top-notch.  “We’re trying to do this with the best minds anywhere in the world,” he noted in a news conference.  He declared that the funds would utilize GE’s expertise in sophisticated diagnostic imaging technology to increase general scientific knowledge on brain functions, noting “With this initiative, we will advance our research and apply our learning to sports-related concussions, brain injuries suffered by members of the military and neurodegenerative diseases such as Alzheimer’s and Parkinson’s.  Advancing brain science will help families everywhere.”

NFL commissioner Roger Goodell also expressed satisfaction with the initiative, stating: “The NFL has made tremendous progress in making the game safe and more exciting.  But we have more work to do.  Our collaboration with GE and Under Armour . . . puts us on an accelerated path to progress . . that will benefit athletes, the military, and all members of society.”

As orignally published at March 13, 2013.
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