Health Care Lawyer Blog

In this week's health law round-up:

- A case originally filed in a Michigan federal court challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) is now headed to the Supreme Court of the United States. Thomas More Law Center v. Obama, et al. was among the first of a series of federal court decisions to weigh in on whether a provision of PPACA which requires all American citizens to purchase insurance by 2014 was a proper exercise of Congress' power. Judge George C. Steeh ruled in October 2010 that the law was constitutional, and the plaintiffs, a conservative public interest law firm, appealed to the Sixth Circuit. In June 2011 a Court of Appeals panel ruled 2-1 that the insurance coverage provision was a "valid exercise of legislative power by Congress under the Commerce Clause" and affirmed the district court's ruling.

Last week, Plaintiffs filed a petition for a writ of certiorari with the Supreme Court, asking the Court to rule on the issue. A response from the Obama Administration is due August 29, 2011. It is worth noting (since nearly every Republican-appointed judge has ruled against the constitutionality of PPACA) that the Supreme Court is currently comprised of five justices appointed by Republican presidents (CJ Roberts, Scalia, Kennedy, Thomas, and Alito) and four justices from Democratic presidents (Ginsburg, Breyer, Sotomayor, and Kagan). Further tipping the balance is the fact that Kagan, a former Solicitor General for the United States, may have to recuse herself from taking part in the decision of the case.

- Two Michigan lawmakers have issued a letter to the United States Department of Health and Human Services supporting the State of Michigan's request to waive the medical loss ratio (MLR) requirements for the individual health insurance market. The MLR requirement, which were included as part of PPACA, requires health insurance companies to spend a minimum amount of premium dollars on medical care and health improvement activities. This minimum amount, expressed as a percentage, is called the "medical loss ratio."

The regulation sets forth a medical loss ratio of 80 percent for insurance companies selling policies in the individual market and the small group (up to 100 employees) market, and 85 percent for insurance companies selling policies in the large group (over 100 employees) market. Accordingly, insurance companies selling policies in the individual market and the small group market must spend at least 80 percent of their premium dollars on medical care or health care quality improvement activities.

Although the Aug. 4 letter cited the predicted disaster that would occur if Michigan is not exempted from the MLR requirements, the letter was not clear on why exactly Michigan could not comply.

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).

As repeated pleas for bi-partisan cooperation reverberate in Congress following the Tucson, Arizona shooting earlier this month, Democrats and Republicans continue to battle over the fate of the Patient Protection and Affordable Care Act (PPACA).

This week several Democratic leaders, including Senate Majority Leader Harry Reid and House Democratic Leader Nancy Pelosi, filed an amicus brief in a pending Sixth Circuit Court of Appeals case which questions the constitutionality of PPACA. The case, Thomas More Law Center v. Obama, et al. (Court of Appeals Docket #: 10-2388), is on appeal from the Eastern District of Michigan, where Judge George C. Steeh ruled last October that Congress had the power under the Commerce Clause to implement PPACA’s mandatory coverage provision.

Although dozens of lawsuits have been filed challenging PPACA constitutionality, the More case is the first to reach the appellate court level. So far two other district court judges have upheld the law, and another has declared the individual mandate unconstitutional. Many other cases have been tossed out of court on procedural grounds.

The amicus brief filed by Democratic leaders alleges that PPACA is a valid exercise of Congress’ power to regulate commerce, and that Congress also has power under the Constitution’s “Necessary and Proper Clause” to adopt the individual mandate. Dozens of other amicus briefs have been filed in the case for both pro and anti-PPACA groups; a few participants to date include the American Cancer Society, American Hospital Association, March of Dimes, and countless other professional and medical specialty organizations.

Several Democratic Attorney Generals said last week that they have formed a coalition to defend the constitutionality of the law in the More case, and in other cases. They include Oregon, Iowa, California, New York, Vermont, Connecticut, Hawaii, Maryland, and Delaware. Conversely, twenty-six other states (most represented by the state Attorney General) have filed a separate lawsuit in Florida challenging the health reform law.

While last week the House of Representatives passed H.R. 2, the two-page bill which repeals PPACA, the fate of PPACA is likely to be resolved in the Supreme Court and, depending on how quickly an opinion is rendered, More will likely be the first case to present the issue before the nine justices. It is almost certain that regardless of whether the Sixth Circuit affirms, reverses, or remands the case, any holding will be appealed by either the More Law Center or the federal government to the Supreme Court.

Oral argument has not yet been scheduled in the More case. The Health Care Lawyer Blog will continue to follow More and other cases regarding PPACA.

The Sixth Circuit Court of Appeals issued an interesting opinion last week regarding the standard of causation required to prove that a health care practitioner’s fraudulent practices resulted in the death of a patient under 18 U.S.C. §1347(2). In United States of America v. Martinez, Case Nos. 06-3882/4206, the Sixth Circuit held that where the death of a patient is a “natural and foreseeable result” of a defendant’s violation of the health care fraud statute, a defendant may be held criminally liable under the statute.

In Martinez, the Federal Bureau of Investigation (FBI) began investigating the defendant anesthesiologist, Dr. Jorge A. Martinez, for health care fraud in the summer of 2002. Martinez operated a pain-management clinic in Parma, Ohio, where he regularly prescribed controlled substances and administrated injections for pain relief and billed private insurance carriers, Medicare, Medicaid, and the Ohio Bureau of Workers’ Compensation. The Government’s investigation revealed that Martinez engaged in fraud by omitting physician examinations, giving his patients more injections than were medically necessary or advisable so as to boost billings and leave them dependent on such drugs, and conducting “quickie” office visits where he saw a patient for only 2 or 3 minutes then billed for a much longer visit.

At trial, the government presented evidence that Martinez’s administration of injections to patients far exceeded the state average for pain-treatment doctors in Ohio. The Government also showed that on the days the patients received injections, Martinez only gave his patients an average of 4.14 shots in one visit, while the statewide average was 1.18; and that Martinez saw many more patients per day than other doctors, which evidenced that Martinez provided substandard medical care. This was supported by numbers from practice sign-in sheets, and testimony from Martinez’s staff saying that he frequently spent only two to five minutes with patients during appointments. An expert also opined that a doctor who was properly treating patients for pain could not possibly see that number of patients each day.

Continue reading "Sixth Circuit Sets Out Standard of Causation to Prove Death from Health Care Fraud" »