Health Law Monitor

The Fourth Circuit Rejects Pre-Suit Notice and Screening Requirements in Medical Professional Liability Actions

November 28, 2023

West Virginia’s Medical Professional Liability Act (“MPLA”), W. Va. Code § 55-7B-1, et seq., implements tort reform in medical malpractice actions. Pursuant to the MPLA, plaintiffs must serve two documents, a Notice of Claim and Screening Certificate of Merit, on each health care provider they intend to sue at least thirty days prior to filing a medical professional liability action.[1] The…

HHS Details Penalties for Certain Actors—But Leaves Providers Hanging

September 25, 2023

On July 3, 2023, the Office of the Inspector General (OIG) and the U.S. Department of Health and Human Services (HHS) published a final rule implementing information blocking penalties against two types of health care actors—health information networks (HINs)/health information exchanges (HIEs) and developers and offerors of health information technology (HIT).[1] The final rule became effective…

ANCHORS AWAY: FIGHTING DAMAGE TACTICS

August 10, 2023

For years we have been facing Reptile tactics designed to increase verdicts.  With each nuance in the strategies, defense counsel are often playing catch up as to how to battle them.  Consulting services conduct studies on juror reactions and war stories are shared to determine how best to combat each new approach.  A common one being addressed currently is the use of anchors.  The attorney will…

Supreme Court Confirms Government’s Discretion to Dismiss Qui Tam False Claim Act Lawsuits

July 7, 2023

On June 16, 2023, the United States Supreme Court handed down its decision in U.S. ex rel. Polansky v. Executive Health Resources, No. 21-1052.  The decision may have a lasting impact on the quickly growing False Claims Act (“FCA”) qui tam litigation throughout the United States.

In Polansky, the Supreme Court held that the federal government has the authority to dismiss an FCA suit in which it…

Supreme Court of Appeals of West Virginia Upholds Peer Review Privilege

June 16, 2023

The Supreme Court of Appeals of West Virginia issued a new opinion affirming the ban on discovery and use of peer review under West Virginia Code §30-3C-3.  In an opinion by Justice Bunn in Toler v. Cornerstone Hospital of Huntington, No.  No. 21-0830 (June 15, 2023), the Court held that the trial court correctly ruled that the plaintiff was not entitled to obtain an incident report related to a…

Indiana Law Restricts Physician Non-Competes (Both Existing and Future): Questions Employers Are Asking/Should be Asking

May 12, 2023

On May 4, 2023, Governor Holcomb signed into law Senate Bill 7, which will take effect on July 1, 2023. The new law significantly restricts the enforceability of physician non-compete agreements in Indiana, both existing and future agreements. Specifically, the statute (i) provides an outright ban of entering into noncompete agreements with primary care physicians after July 1, 2023, (ii) renders…

Expansion of HIPAA Privacy Rule for Reproductive Health Care

May 11, 2023

On April 17, 2023, the Department of Health and Human Services (the “Department”) issued a Notice of Proposed Rulemaking (“NPRM”) proposing to expand protections afforded by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule following recent legal events involving reproductive health care.[1]

This NPRM aims to strengthen the Privacy Rule protections by prohibiting…

Indiana Healthcare Employers Beware—Greater Protections for Physicians are on the Horizon

April 27, 2023

The Indiana General Assembly passed Senate Bill (SB) 7 on April 24, 2023, and it now heads to Governor Holcomb’s desk for signature. If signed into law, SB 7 would (i) ban noncompete agreements between a primary care physician and employer, (ii) render a noncompete agreement unenforceable upon certain events and (iii) specify a process by which a physician or employer may pursue mediation to…

With an Extension Likely, Telehealth Seems Here to Stay

October 6, 2022

Telehealth is a growing trend in medicine.  From 2019 to 2020, telehealth use increased an eye-popping 3000%, not including Medicaid and Medicare claims.  Although the claims have decreased slightly as of 2021, telehealth is clearly here to stay and with it comes new challenges.

What is Telehealth?

For the purposes of Medicare, “telehealth services” are “professional consultations, office visits,…

HIPAA Rules Now Permit Audio-Only Telehealth

June 16, 2022

On June 13, 2022, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced new guidelines clarifying how audio-only telemedicine can comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy, Security, and Breach Notification Rules (HIPAA Rules).[1] These guidelines were announced in response to Executive Order 14058, issued on…

Creating Cultural Responsiveness in the Colorado Healthcare Network

May 6, 2022

Beginning January 1, 2023, the Colorado Option Plan will go into effect. Under the Colorado Option Plan, private insurers will be required to offer a standardized insurance plan that offers certain health care services and dictates the services that insureds could receive without paying towards the deductible to the counties in which insurers already sell plans to the individual and small group…

West Virginia Board of Medicine Investigators May Now Be Carrying Concealed Firearms

April 27, 2022

In its most recent legislative session, the West Virginia Legislature passed a law, which was subsequently signed by Governor Justice, that will allow investigators with the West Virginia Board of Medicine to carry a concealed firearm.[1]  This is a new law that will create a new statutory section in the West Virginia Medical Practice Act, which is codified at W. Va. Code 30-3-1, et seq.  According…