ABA Health eSource - Your link to the ABA's Health Law Section
March 2008 Volume 4 Number 7
Health Law Section News  March 5, 2008

March 3, 2008
Health and Welfare Update: State Health Benefit Requirements

(Teleconference & Live Audio Webcast)

March 11, 2008
Healthcare Industry Restructurings: How the 2005 Bankruptcy Code Amendments Change the Rules

(Teleconference & Live Audio Webcast)

A Practical Guide to Medicare Appeals

March 13, 2008
Anti-Kickback Law Basics

(Teleconference & Live Audio Webcast)

March 18, 2008
162(m) - Have the Rules Changed for Termination Payments and Performance-Based Compensation

(Teleconference & Live Audio Webcast)

March 20, 2008
The New Form 990: A New Era of Transparency and Compliance

(Teleconference & Live Audio Webcast)

March 26, 2008
eDiscovery in Healthcare: What You Must Do Before & After a Litigation Hold

(Teleconference & Live Audio Webcast)

April 8, 2008
The Supreme Court's LaRue Decision: What's the Next Generation of 401(k) Litigation?

(Teleconference & Live Audio Webcast)

April 10, 2008
Patient Safety and Quality Improvement Act of 2005: Proposed Regulations

(Teleconference & Live Audio Webcast)

June 13, 2008
Physician-Legal Issues Conference

(Chicago, IL)

Interest Group Communication Highlights

Resources & News


New Cumulative Supplements

CDC Public Health Law News

CDC Newsletter is a free electronic newsletter published weekly by the Centers for Disease Control and Prevention, Public Health Law Program


Chair's Column: State Of The Section
by Andrew J. Demetriou, Fulbright & Jaworski LLP, Los Angeles, CA

In accordance with our Section tradition, I addressed a plenary gathering at our recently concluded Emerging Issues Conference in San Diego to report on the state of your Health Law Section. I emphasize the plural possessive, because this Section belongs to its loyal members. I have decided to share the substance of my comments with those were unable to join us in San Diego as this month's column.

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Jury's Verdict in Summary Suspension Case Nullified
by Michael Kurs, Pullman & Comley, LLC, Hartford, CT

In August of last year, after jurors returned a verdict against a Connecticut hospital in the amount of $250,000, plus punitive damages, in a case involving the summary suspension of a surgeon's privileges, Connecticut Superior Court Judge Carl J. Schuman granted motions that freed the hospital from any liability and entered judgments for the hospital. "The favorable termination doctrine," a doctrine borrowed from the law of malicious prosecution and vexatious litigation, lies at the center of the judge's decision. The application of the doctrine prevented the doctor from recovering against the hospital because he did not prevail in the course of the internal hospital due process proceedings. The significance of the favorable termination doctrine in court challenges in hospital staff privileges cases is that the doctrine prevents a jury from second guessing the results of internal hospital hearing and review procedures. Counsel involved in litigating like cases should not overlook the doctrine's utility and effect.

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Professional Liability or General Liability: What Qualifies as the Rendering of "Professional Services"?
by Alicia R. Bromfield, Saxe Doernberger & Vita, P.C., Hamden, CT

In today's litigious society, the healthcare provider inevitably will need to turn to its insurers to cover claims and suits brought against it. Especially with increasing verdicts, it is crucial that healthcare providers and risk managers be aware of and understand what coverage is available to respond to liability claims -- and what must be done to gain access to that coverage. A healthcare provider typically has, as part of its insurance arsenal, a professional liability policy and a general liability policy. Although in the past, it was typical for a healthcare provider to purchase both policies from the same insurer, this is no longer the case due to adverse trends in the professional liability market and the increased use of self-insurance. Sometimes a healthcare provider is self-insured at the primary layer for its professional liability but purchases coverage from an insurer for its general liability. It is important to understand when a claim might be considered professional liability, when it might be considered general liability, when it might be a combination of both, and what the healthcare provider must do to ensure that it receives all of the coverage to which it is entitled.

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Pitfalls Of Hospitals Seeking Indemnity Or Contribution From Hospital Based Physicians As A Result Of "Vicarious Liability Claims" Against The Hospital
by Richard Jones, Akerman Senterfitt, Tampa, FL

With so many hospitals facing financial challenges due to increased costs, seasonal census, reimbursement rate declines, and increased tax and regulation scrutiny of arrangements/relationships with hospital-based physicians, rights to recover damages from hospital-based physicians through indemnity or contribution are becoming increasingly important.

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EMTALA: Its Application to Newborn Infants
by Thaddeus M. Pope, Widener University Law School, Wilmington, DE

The application of the Emergency Medical Treatment and Labor Act (EMTALA) to extremely premature newborn infants has long been a source of concern to pediatricians and neonatologists. Preston v. Meriter Hospital is the first case to directly address the special status of newborns. In Preston, the Wisconsin Court of Appeals effectively narrowed the application of EMTALA to newborn infants, holding that EMTALA categorically does not apply to any infant born to an inpatient mother.

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Healthcare Litigation & Risk Management Interest Group

The Healthcare Litigation and Risk Management Interest Group examines areas in healthcare related litigation and the continuum of liability control.

The IG is led by Chair Hilary Young, Joy & Young LLP, Austin, TX and Vice Chairs Bryan J. Davis, Bannerman & Williams, P.A., Albuquerque, NM; R. Jeffrey Layne, Fulbright & Jaworski LLP, Austin, TX and Lois Snyder, Cntr for Ethics & Professionalism, American College of Physicians, Philadelphia, PA.

If you would like to join the Interest Group, continue by clicking the following link: Health Law Section IG Sign-up Form.

Do you want to communicate your ideas to thousands of other members through the wonders of cyberspace? To contribute a newsletter article on a health law topic, send us your ideas to Adam.Bielawski@americanbar.org

The opinions expressed are those of the authors and shall not be construed to represent the policies or positions of the ABA or the ABA Health Law Section.
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