Healthcare Law Briefs
1. U.S. Supreme Court
Upholds Maine Rx
On May 19, 2003, the Supreme Court
rejected the pharmaceutical companies' attempt to enjoin Maine's
prescription drug program. Maine Rx, which was enacted in 2000 but
never implemented, authorizes the state to ban pharmaceutical companies
from the state Medical program if the company does not offer similar
rebates to the Maine Rx program for the state's uninsured citizens. The
drug industry representatives sought an injunction, alleging that the
law was unconstitutional and was preempted by Medicaid. All nine
justices agreed that the law should not be enjoined based upon the
constitutional agreement; six agreed there was an insufficient basis to
issue an injunction based upon the preemption argument.
Pharmaceutical Research and Manufacturers of America v. Walsh, U.S. No.
01-188.
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2.
Joint and Several Liability Statute Threatened
In the midst of the
malpractice crisis in Pennsylvania, healthcare providers have touted Act
57 of 2002 as a victory in the malpractice reform movement. Act 57
provides that, in negligence suits with multiple defendants, each
defendant is liable only for damages proportionate to his liability.
This progress could be threatened. Following passage of Act 57, several
lawmakers sued to declare the Act as unconstitutional because it
violates the Pennsylvania Constitution requirement that legislative acts
conform to the "single subject" rule. The Sate filed preliminary
objections to this suit, but those preliminary objections were dismissed
by the Commonwealth Court on May 15, 2003. DeWeese and Veon v.
Commonwealth of Pennsylvania, No. 567 M.D. 2002.
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3.
Some Malpractice Relief: NY Court Finds No Professional Duty to
Non-Patient
The holding would
seem to be obvious, but this NY appellate court case was actually a
reversal of a trial court decision. The NY court held that ER
physicians employed by a New York City Municipal Hospital who treated a
woman suffering from infectious meningitis did not owe a duty to a
friend of the patient, whom they allegedly advised that treatment for
her was unnecessary. Although the case was dismissed, the court did
state that the physician's conduct was inappropriate and recognized, in
dicta, that a professional duty would extend to non-patients in other
special circumstances. McNulty v. New York City, N.Y. Ct. App
No. 52, 5/13/03.
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4. AGH
CRNAs Win Injunction Appeal
The Pennsylvania
Commonwealth Court upheld an Allegheny Court of Common Pleas ruling that
denied a motion for a preliminary injunction against the CRNAs
practicing at Allegheny General Hospital.
For a copy of the opinion,
click here.
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5.
Tucker Arensberg Attorney Elected Vice Chair of AHLA Committee
Michael A. Cassidy,
an attorney at the law firm of Tucker Arensberg, P.C., has been
appointed Vice Chair of the
Credentialing and Peer Review Practice Group
of the American Health Lawyers Association (AHLA).
During Mr. Cassidy's one-year term, he will be involved in formulating
newsletters, members' briefings, teleconferences, conference calls and
meetings at Health Lawyers educational programs. The
Credentialing and Peer Review Practice Group addresses credentialing and
peer review issues in all types of healthcare settings including issues
of medical staff and physician relations; peer review; privileging;
selection and de-selection of practitioners; allied health
practitioners; and medical staff bylaws.
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6. House Bills Affect
Medical Malpractice Cases and Physician Sanctions
Three bipartisan-sponsored bills
introduced in the PA house would make significant changes to the way in
which medical malpractice cases are resolved in the state, and the way
physicians are sanctioned. HB 1198 would create within the Office of
Attorney General the Office of Administrator for Health Care Arbitration
Panels - a compulsory arbitration system designed to reduce frivolous
claims and create streamlined procedures to arbitrate and adjudicate
malpractice lawsuits. The arbitration panel’s decisions can be appealed
to the appropriate court of common pleas.
Punitive damages would be completely
eliminated in medical malpractice cases. The bill would also prohibit
the Pa. Insurance Department from approving a medical malpractice
company’s premium request from 2004 to 2006 which is not at least 20
percent below the current average rate unless the insurance company is
threatened by insolvency. After 2006, the Department must hold public
hearings for any rate increase greater than 15 percent of the current
rate and companies may not increase the rate of a health care provider
who has been sued unless there was a finding of negligence or a reported
settlement between the parties. HB 1199 would create a Court of Medical
Claims of Pennsylvania that would have elected judges, would divide the
state into three districts – eastern, middle and western - from which to
draw jurors, and would have jurisdiction over all civil actions or
proceedings against a health care provider for all medical professional
liability claims. If the plaintiff in a medical malpractice action
voluntarily agrees to the damage limitations at the time the action is
instituted, catastrophic injury cases would be capped at $2 million,
severe injury cases would be capped at $750,000 and moderate injury
cases would be capped at $250,000, while the court would be empowered to
determine which level of injury applies. The court would conduct an
expedited trial schedule for such cases. If the court finds that the
plaintiff's action was frivolous, the defendant would not be responsible
for paying any court costs. HB1197 would create a third physician
disciplining entity in Pa.: the Medical Professional Liability
Disciplinary Board, consisting of seven board-certified medical or
osteopathic doctors appointed by the Governor, which would be given the
same authority as the State Board of Medicine and the State Board of
Osteopathic Medicine to discipline physicians – including suspension of
license and civil penalties up to $10,000 in connection with medical
professional liability claims. The new Disciplinary Board would have the
additional authority to suspend immediately the license of any physician
who has three paid medical professional liability claims within the
immediately preceding seven years, and to consider further sanctions.
Physician’s News Digest, May 27, 2003
<Top >For more information about the
topics presented in this newsletter please contact one of the Healthcare
Attorneys:
>Read
the Fall 2002 issue of our HEALTHCARE
NEWSLETTER.
 Tucker Arensberg,
P.C.
1500 One PPG
Place Pittsburgh, PA 15222 412/566-1212
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