Health Care Lawyer Blog

The U.S. District Court for the District of Nevada has dismissed a claim filed a plaintiff alleging that a hospital's failure to provide a mental health screening violated the Emergency Medical Treatment and Active Labor Act (EMTALA).

EMTALA, often referred to as the patient anti-dumping law, requires all hospitals who participate with federally-funded health programs to provide an examination and stabilizing treatment to patients who present to the ER with an emergency medical condition, regardless of the patient's ability to pay.

In 2008, plaintiffs' decedent Oscar Aniceto Mejia-Estrada committed suicide while in the care of Sunrise Hospital and Medical Center approximately 12 hours after his arrival. Plaintiff's estate filed suit, alleging that the hospital was required to perform a mental health screening (instead of moving Mejia-Estrada to the hospital's Discharge and Observation Unit to await a psychiatric evaluation from Southern Nevada Adult Mental Health, a state agency.) Plaintiff's estate alleged that the hospital's failure to conduct a mental health screening constituted a violation of EMTALA.

In dismissing the claim, the court noted that the EMTALA statute specifically limits the required screening evaluation to one that is within the capability of the hospital's emergency department. The record reflected that the hospital did not have the capability to conduct mental health screenings on its own, and did implement suicide prevention precautions once Mejia-Estrada was admitted to the Discharge and Observation Unit. (The opinion did not discuss how Mejia-Estrada committed suicide and overcame the precautions.)

The plaintiff's claims for medical malpractice against the hospital were not discharged by the EMTALA ruling and are still ongoing. The case is Esperanza v. Sunrise Hospital, Medical Center LLC (D. Nev).

*Today's post was authored by FHW attorney Michelle D. Bayer

When the Michigan legislature enacted the Michigan Medical Marihuana Act, MCL §333.26421 et seq, effective December 4, 2008, it joined about 12 other states which at that time had legalized the medical use of marihuana. However, recent developments indicate that even individuals who are legally authorized to use medical marihuana may still come under fire for a variety of related offenses.

There has always been a conflict between federal law, which classifies marihuana as a Schedule I controlled substance which is prohibited under the Federal Controlled Substances Act, and these state statutes legalizing medical marihuana use. A 2009 memo from Deputy Attorney General David Ogden directed U.S. Attorneys not to target medical marihuana businesses in areas where they're legal, as long as they're following state law, was seen as a green light for the state legislation.

Despite this pronouncement by the Obama administration and the Deputy Attorney General, medical marihuana statutes across the country and in Michigan have come under attack.

Recently, the Federal DEA has sought to obtain state medical marihuana program members’ information as part of its investigations. In Michigan, legislation has been proposed which would require the Michigan Department of Licensing and Regulatory Affairs, the governmental body which processes medical marihuana program applications, to give the Michigan State Police the names and addresses of registered patients and caregivers. Right now, law enforcement authorities can only check registrations by obtaining a patient or caregiver’s personal identification number.

Significantly, in Michigan, and other states, card carrying program members have been prosecuted for a variety of actions including, driving under the influence, violations of zoning ordinances, probation violations, excessive plant growing, and other technical violations of the state statute, even though they are properly enrolled in the medical marihuana program. The discharge of an employee for off-duty marihuana use, who was in compliance with the state medical marihuana statute, was affirmed.

Continue reading " Has Freedom to Use Medical Marihuana Burned Out? " »

Today's installment of "health care entity fined for having nosy employees" hails from Los Angeles, California, where the UCLA Health System has agreed to pay the U.S. Department of Health and Human Services $865,000 to resolve privacy breach allegations. The settlement agreement stems from complaints filed by two celebrity patients, who alleged that from 2005-2008, unauthorized employees improperly accessed the patients' protected health information in violation of HIPAA.

Providers should heed an important lesson from this and other similar settlements - although the employees did the snooping, at the end of the day the providers were the ones footing the bill for the privacy violations. Therefore, every health care provider should, at a minimum, take the following steps:

1) Educate ALL employees on how protected health information (PHI) may be properly used - i.e., PHI may ONLY be accessed for treatment, payment, or health care operations. Employees should understand that simply because they work for a health care provider, it does not grant them unfettered access to peruse all patient records.
2) Privacy policies should be clearly outlined in an employee handbook or manual, along with guidelines for how employees should report suspected privacy breaches.
3) Providers should carefully screen all potential employees, from licensed medical personnel to receptionists. Specifically, hiring employees with questionable or unknown backgrounds increases the risk that employees may use PHI for personal gain - for example, selling information about a local celebrity to a tabloid or even maliciously disseminating the information on Facebook, Twitter, etc. to gain popularity.

Providers with questions about how to best protect themselves from privacy breaches should contact an experienced health care attorney. At a minimum, every provider should have a comprehensive employee handbook, copies of which should be given to ALL employees.

Today's post was authored by FHW member Michael J. Hamblin

Any physician planning to start a new medical practice is faced with a dizzying array of decisions. However, utmost care should be given to one choice in particular – selecting the right corporate entity for a new practice.

Background
there are three main kinds of general business entities in Michigan: C corporations, S corporations, and limited liability companies (LLCs). Michigan law further provides for the formation of “professional” corporations and limited liability companies when the business to be conducted consists of providing professional services. Under Michigan law, the definition of “professional services” includes medical services and care provided by physicians. Thus, Michigan medical practices must be organized as professional C corporations or S corporations (PCs), or as professional limited liability companies (PLLCs or PLCs).

There are four major issues to be considered when choosing the entity for a new medical practice: (1) Who will own the practice; (2) How earnings from the practice will be distributed; (3) Whether the new practice will initially generate profits or losses; and (4) How to best implement the broadest liability shield possible for owners of the practice.

Continue reading " Corporate Entity Selection: A Primer for Physicians " »