Around the Nation: April 2013
News and updates from CLM state chairs, reps, and committees.
License Required for Standard of Care Expert
In Cornerstone Hospital of Southeast Arizona v. Marner (Blackburn), the Arizona Court of Appeals, Division II, held that A.R.S. §12-2064, the Arizona statute that prescribes the qualifications of a standard of care expert in medical negligence actions, applies to matters brought pursuant to the Adult Protective Services Act (APSA). A.R.S. §12-2064 provides, in part, that a standard of care expert in a medical negligence case must be licensed as a health professional and meet additional criteria as specified in the statute. The Court of Appeals concluded that A.R.S. §12-2064 applies to APSA actions based on allegations of medical negligence involving a vulnerable adult.—From Arizona State Chapter Co-Chair Margie McCarthy
Failure to Use Defibrillator Not Actionable
No more deliberation on defibrillation in New York. In Miglino v. Bally Total Fitness of New York, the state’s highest court held that a health club has no affirmative duty to utilize a defibrillator maintained on its premises pursuant to the statute. The court also held that it was premature on a motion to dismiss rather than a motion for summary judgment to determine whether the defendant breached a common law duty to the plaintiff. While failure to utilize a defibrillator is not actionable, courts will still look at the total response to an emergency in determining whether a cause of action exists. The dissent also urged the legislature to modify the law to make clear a duty to employ the defibrillator.—From New York State Chair Howard S. Shafer
New Telemedicine Law Vague
Nevada is close to passing a new regulation proposed by the Division of Industrial Relations (DIR) to provide medical benefits for injured employees via telemedicine. If adopted, the regulation would allow injured employees in rural locations to attend medical evaluations in an urban healthcare facility by simultaneous video and audio communication. However, the regulation is vague on several matters. It creates uncertainty regarding appointment requests and appeals and suggests passing fees for appointments to employers as additional premiums. For details on the DIR’s rationale and to submit statements for or against the regulation’s adoption, go to http://dirweb.state.nv.us.—From Nevada State Member Cher L. Shaine
No Overreach with Hospital Lien Act
In West v. Shelby County Healthcare Corp., a class-action suit, the Tennessee Court of Appeals Western Section reviewed the issue of whether or not the Hospital Lien Act permits a hospital to accept health insurance benefits and claim the unreduced and full amount of the hospital bill against a third-party insurer. In this case, the hospital would accept the health insurance payments and file a hospital lien. The hospital would refuse to release the lien even though it had been paid by the health insurance carrier on the premise that the hospital would pay back the health insurer once it received the full, original, and unreduced amount of the hospital’s bill from the tortfeasor’s insurer. The court exhaustively discussed the laws of numerous jurisdictions and federal legal precedent, holding that “Because the patients no longer owed a debt to the [hospital] for its services, we conclude that the [hospital] may not assert a lien under the HLA against appellants’ recovery from any third-party tortfeasor. In reaching this conclusion, we follow the lead of most of our sister states that have addressed the same question under hospital lien statutes analogous to the Tennessee HLA.”—From Tennessee State Lead Chair Jim Wright
Workers’ Comp Automation and Integration System
On Sept. 17, 2012, the Pennsylvania Department of Labor and Industry rolled out the Workers’ Compensation Automation and Integration System, also known as WCAIS. When the system is completely up and running, it will afford insurance carriers, attorneys, employers, and self-insured employers doing business in Pennsylvania 24-hour access to documents and claims, which will, in turn, increase efficiency and save costs. WCAIS is a Web-based information system that will ultimately link the Pennsylvania Bureau of Workers’ Compensation, the Pennsylvania Workers’ Compensation Appeal Board, and the Pennsylvania Workers’ Compensation Office of Adjudication.
Parties are now able to file appeals or petitions with the appeal board, upload and view documents, view correspondence and status, and submit requests to the workers’ compensation helpline. It is projected that, from September 2013 on, users of the system will be able to conduct business with the Workers’ Compensation Office of Adjudication and the Bureau of Workers’ Compensation on an around-the-clock basis in order to obtain claims-related information and file claims-related forms and petitions electronically.— From Pennsylvania State Chapter Member Holly N. Zeitz
Kitchen Sink Approach Fails
In Sarmasti PLLC v. Emanuel, a law firm and its principal sued for defamation, slander, libel, false light invasion of privacy, tortious interference with prospective economic advantage, and tortious interference with existing business relations. Plaintiffs alleged that the defendant met with one of their clients on July 31, 2008, and stated that they had engaged in fraudulent billing and willfully and falsely billed for services not provided. Ultimately, the trial court granted summary judgment to the defendant, finding that any allegedly defamatory statements made by the defendant prior to July 30, 2008, were beyond the statute of limitations. As to the alleged conversation on July 31, the judge concluded that it involved business partners disputing an attorney’s bill. The judge found that any defamatory statements were entitled to protection because they were made in regard to a common interest. As to the claims of tortious interference, the judge found that the plaintiffs failed to prove malice. On appeal, the appellate division affirmed. Although the defendant did not plead the affirmative defense of common interest privilege, the appellate division found that the interests of justice were served by the trial court’s consideration of the issue.—From New Jersey State Co-Chair Karen Painter Randall