On January 10, 2018, the South Dakota Supreme Court served strong notice to those who make a habit of seeking to quickly resolve claims following an injury. The case was Kathy A. Schaefer v. Sioux Spine and Sport, Prof. LLC, and Nathan J. Flanders v. Herbert Tollefson. 2018 S.D. 5. In Schaefer, the Plaintiff, a passenger, was injured in an auto accident in June of 2013 when the vehicle she was riding in was rear-ended by Defendant Flanders. The Plaintiff was transported from the scene by ambulance. At the hospital, she had an x-ray which revealed no injury. She was diagnosed with a neck sprain and chest contusion and released. Two days after the accident, the Plaintiff was contacted by an adjuster for Defendant Flanders’ insurer and within two weeks the adjuster asked for a demand and made an offer to resolve the claim.
Conflict can arise in almost every facet of health care. Issues may include employment and credentialing disputes, traditional malpractice claims, premises liability charges, family disputes in a hospital, denial of claims for reimbursement, disagreements related to the buying and selling of physician practices, and hospital mergers and acquisitions. While Alternative Dispute Resolution (ADR) is being more commonly used to efficiently resolve disputes, the American Bar Association (ABA) recently noted that “anecdotal evidence suggests that the health care industry and the legal profession with an interest in health care have lagged behind others in embracing the broad array of dispute resolution techniques to address conflicts and resolve disputes.” For this reason and others, the ABA adopted a resolution urging “lawyers and all interested parties to encourage the informed and voluntary use of alternative dispute resolution (ADR) processes as an effective, efficient and appropriate means to resolve health care disputes.”
The key to successful ADR is to address issues before relationships break down, individuals take sides, and costs begin to rise. ADR offers many benefits in comparison to traditional litigation, including:
- Cost efficiency
- Expertise of a neutral arbitrator
- Flexibility of the process and solutions
- Ability to maintain long-term relationships
- No or little discovery
- Confidentiality and privacy
- Enforceability of the resolution
Next time a conflict arises in your healthcare practice, ADR should be something considered at the outset.
Find the ABA’s resolution here:
On May 8, 2017, a federal jury awarded a $1,180,257 verdict to former Huron surgeon, Dr. Linda Miller. The jury found that Huron Regional Medical Center (HR) breached Dr. Miller’s services contract and its own bylaws in handling Dr. Miller’s privileges back in 2011.
Dr. Miller began working at HR in 2004 as a contract surgeon. In 2006, she joined the HR staff and later became an independent contractor for the clinic in 2009. In the summer of 2010, HR’s Board of Directors became concerned with some of Dr. Miller’s patients’ complications. The Board asked the MEC to investigate, which resulted in internal review of all of Dr. Miller’s cases. More patient complications arose in late 2010 and early 2011 and some additional external review was undertaken. By April of 2011, the Board and MEC felt something needed to be done, so the MEC decided to ask Dr. Miller to voluntarily reduce her surgical privileges. When confronted with this choice, Dr. Miller claimed she was given no other options. On April 26, 2011, Dr. Miller acquiesced. Even though an MEC member had apparently told her otherwise, HR concluded Dr. Miller’s decision created a reportable event and it reported Dr. Miller to the NPDB. In May of 2011, Dr. Miller requested reinstatement of some of her privileges, with additional conditions. Her request was approved and HR reported to the NPDB again, this time indicating that Dr. Miller had restrictions on her privileges. About four months later, in September of 2011, Dr. Miller resigned from HR.
A Section 1557 lawsuit is now pending in an Arizona federal court. Twelve (12) hearing-impaired individuals have brought suit alleging their health care provider discriminated against them by not providing sign language interpreters or electronic video interpretation. Instead of providing such accommodations, the lawsuit alleges, the health care staff relied on notes and lip reading in an attempt to communicate with the patients. The individuals assert that the provider should have trained the staff to recognize when interpretation is necessary, provided a functioning electronic video interpretation system, and instructed the staff on how to use electronic video interpretation.
The lawsuit underscores the requirements now imposed on health care providers under Section 1557 of the Affordable Care Act which became effective in July 2016. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in federal health care programs. When interacting with individuals with sensory, manual, or speaking disabilities, health care providers are required to provide communication that is as effective as the provider’s communication with non-impaired individuals. This requires that health care providers have access to sign language interpreters, Braille handouts, visual aids, auxiliary aids, or other communications formats when the need arises.
For many years, medical providers have been faced with the task of untangling the web of medical and ethical issues surrounding end of life decisions. More recently, the profession has successfully navigated the problem by pushing for patients and the general public to complete healthcare directives or other documentation clarifying their wishes. However, this most recent movement has created an interesting twist on the same old problem – what happens when a medical provider fails to actually follow a patient’s written directive?
Paula Span, a writer for the New York Times, recently published an article documenting the new trend of lawsuits brought against medical providers for ignoring a directive and actually saving a patient’s life. Among other specific accounts, her article documents a Maryland woman who had a Medical Order for Life-Sustaining Treatment stating that she did not want life saving care if her heart or lungs failed. When she was found blue in her bed at the hospital, staff revived her through CPR and defibrillation, saving her life but breaking her ribs, collapsing one of her lungs, and ignoring her wishes in the process. The patient and her family brought suit for a variety of damages, including for recovery of the cost of the hospital bills she would have never incurred. The case is set to go to trial in November of this year.
On February 8, 2017, a Federal District Court in Texas provided a noteworthy ruling requiring a Texas hospital to void a NPDB report about a surgeon on its staff. The underlying facts are simple: The surgeon was peer reviewed as a result of two cases; The MEC recommended proctoring for five cases; The hospital’s Board followed the MEC’s recommendation, however, it did not specify a timetable for completion of the proctoring; After the five proctored cases were not completed within 30 days, the hospital reported the surgeon to the NPDB. The surgeon brought suit seeking various forms of relief, one being his request that the NPDB report be voided.
House Bill 1040 is now headed to the South Dakota Governor’s desk. The Bill, which passed the SD Senate on February 7, adds “community living home” to the definition of a regulated health care facility, bringing such facilities under the guise of South Dakota’s laws and regulations governing health care institutions under Title 34 of the South Dakota Code.
The Bill defines a “community living home” as any family-style residence whose owner or operator is engaged in the business of providing individualized and independent residential community living supports for compensation to at least one unrelated adult, but no more than four, and provides one or more regularly scheduled health related services, either administered directly or in collaboration with an outside health care provider.
If signed, the Bill will require operators of community living homes to apply for and receive a license prior to commencing operation.
On Wednesday, February 1, the South Dakota House of Representatives defeated HB 1003, a bill that would have allowed licensed nursing facilities to transfer nursing bed capacity to another facility. The Bill would have required the transferee to license the transferred or purchased beds within twenty-four (24) months of the transfer or sale.
While the Bill’s sponsor sought to add “a little bit of free enterprise” to the nursing facility industry in South Dakota, opponents of the Bill feared that the ability to freely transfer nursing bed capacity would disadvantage rural areas of South Dakota in favor of more populous areas where residents are more likely to be private-pay residents as opposed to Medicaid recipients.
As a part of the 2017 legislative session, South Dakota lawmakers are considering a number of bills affecting the health care industry in the state. Senate Bill 49 is one Bill the Health Care Group is monitoring that will affect the regulation of independent emergency health care providers in the State. The Bill seeks to amend current South Dakota law to include a ‘free standing emergency medical care facility’ under the same definition of ‘health care facility’. A freestanding emergency medical care facility is defined in the Bill as any facility structurally separate and distinct from a hospital that directly receives a person and provides emergency medical care. By including these freestanding facilities within the general definition of ‘health care facility’, independent emergency departments are brought under the guise of South Dakota’s statutory and regulatory scheme governing hospitals and related institutions. It is worth mentioning that the Bill exempts those freestanding facilities that are certified as a department of a hospital.
On January 25, the Bill passed the Senate by a vote of 34 to 1. On January 26, the Bill was first read in the House and was referred to the Health and Human Services Committee. Stay tuned as this Bill makes its way through the legislature.
In a blog post on January 17, CMS reported a reduction in avoidable hospital stays for long-term care residents.
Beginning in 2010, the blog reported, the rate of potentially avoidable hospitalizations of patients who were both Medicare beneficiaries and eligible for Medicaid benefits living in long-term care facilities was 227 per 1,000 beneficiaries. By 2015, the rate had decreased to 157 per 1,000 beneficiaries. CMS reported that such a reduction avoided 133,000 hospitalizations over the past five years.
CMS attributed the reduction to various factors including the 2011 initiative by Medicare-Medicaid Coordination Office aimed at focusing on preventable conditions that lead to hospitalizations as well as the Agency for Healthcare Research and Quality Safety Program for Long-Term Care.
“This success shows that a sustained commitment to smarter spending across the entire health care system can yield dramatic results and improve the lives of vulnerable Americans,” the blog concluded.