Office of Civil Rights Issues Phishing Email Alert

On November 28, 2016, the Office of Civil Rights of the Department of Health and Human Services, the entity responsible for HIPAA administration, issued an alert about a potential “phishing” email scam. The email purports to come from OCR’s Director, Jocelyn Samuels, and targets employees of covered entities and business associates. The email appears legitimate and includes a link concerning the audit program. By clicking on the link, the user is redirected to a cybersecurity firm marketing website.

For those who may not be familiar with the term, “phishing” refers to an email that looks official or legitimate, but then redirects the person to an unaffiliated website. Common “phishing” emails mimic requests from credit card companies for personal information, auction sites for login information, and banks for updated privacy information. As always, if you have received an email that you did not expect and have questions about it, contact the alleged source directly to verify before opening.

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Georgia Court of Appeals Affirms Exclusion of Doctor’s Substance Abuse

In a lengthy ruling covering many issues related to a trial, the Georgia Court of Appeals affirmed the exclusion of a doctor’s past substance abuse issues on the grounds of relevance. In the case of Doherty v. Brown, et al., issued on November 18, 2016, the Court addressed numerous issues arising out of a $22 million verdict against a pain physician and his practice group. The Plaintiff claimed that the doctor’s past substance abuse issues went to the question of “patient safety.” The doctor moved in limine and the trial court granted the motion. When Plaintiff attempted to bring it up at trial, the doctor objected and the trial court sustained the objection. On appeal, Plaintiff claimed the evidence should have been admitted. The Court disagreed, holding that the trial court properly exercised its discretion to exclude the evidence because there was no proof the doctor was impaired at the time of the surgery at issue.

The take-home is that the appellate courts have repeatedly held that evidence of a physician’s past substance use or abuse is not relevant to the issue of malpractice unless there is proof of impairment at the time of the incident.

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FTC Issues New Guidance on HIPAA and FTC Act

On October 22, 2016, the FTC issued new guidance to all those subject to the HIPAA Privacy Rule, including “downstream” business associates. “Once you’ve drafted a HIPAA authorization, you can’t forget the FTC Act,” which prohibits deceptive or unfair acts or practices affecting commerce. According to the FTC, this includes the duty to avoid misleading others about what is happening with their health information. “Your business must consider all of your statements to consumers to make sure that, taken together, they don’t create a deceptive or misleading impression.” The FTC includes a “.com Disclosures report” for guidance on creating effective privacy practices disclosures. The FTC warns against inconsistent language in privacy practices disclosures and contradictions regarding when information may be displayed publicly.

Please click this link for more information: https://www.ftc.gov/system/files/documents/plain-language/pdf-0219_sharing-health-info-hipaa-ftcact.pdf

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Georgia Supreme Court Reverses on 30b6 Testimony

The Georgia Supreme Court reversed the Court of Appeals’ decision in the case of Yugueros v. Robles and remanded for review of whether a corporate representative was qualified to give standard of care testimony in a medical malpractice case. In Yugueros, the medical issue was whether a stat CT scan was needed after discharge from an emergency department. The post-abdominal surgery patient presented to the emergency department with pain. An x-ray was read as unremarkable, but with a recommendation for a CT scan. Dr. Yugueros was contacted after the pain worsened.  Dr. Yugueros saw the patient, but did not order a CT scan.

During the litigation, plaintiff served a notice of deposition for a corporate representative (a “30b6 witness”). Dr. Yugueros’ partner was designated as the representative of the group. During the 30b6 deposition, the representative testified that Dr. Yugueros ordered a CT scan, when, in fact, she had not. The follow-up questions indicated that the representative considered ordering a CT scan part of the standard of care. Before trial, Dr. Yugueros and her group moved to exclude the 30b6 witness testimony because it was not based on facts in the record, consistent with the rules regarding expert witness testimony. Plaintiff opposed, and argued that it was an admission against interest. The trial court excluded the testimony and the Court of Appeals reversed because the testimony was not “expert” testimony but rather an admission against interest.

On certiorari, the Supreme Court reversed, holding that while depositions may be used by an adverse party “for any purpose,” that does not trump the rules regarding the admissibility of evidence, including the requirement that opinion testimony be based on facts. The Court sent the case back to the Court of Appeals for further review.

Take-home: the case is not yet decided. But, it demonstrates that deposition testimony must still meet other evidentiary thresholds before it becomes admissible into evidence.

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Georgia Court of Appeals Substitutes One Doctor for Another in Malpractice Suit

In the case of Hospital Specialists of Georgia, Inc. v. Gray, October 27, 2016, the Georgia Court of Appeals held that the trial court properly denied summary judgment to a practice group based on “substitution” of a second doctor after expiration of the statute of limitations, limiting the case of Thomas v. Medical Center of Central Georgia.

Plaintiff Gray’s wife died after developing ARDS. Plaintiff sued Hospital Specialists of Georgia (“HSG”). Plaintiff alleged that Dr. Garrison was an employee or agent of HSG and that he was negligent and caused his wife’s death. Counsel for HSG met with Dr. Garrison shortly after the complaint was filed and determined that Dr. Ellis had treated Ms. Gray, not Dr. Garrison. The appellate decision is light on facts, so it is not clear whether this was disclosed in discovery or not.

Over three and a half years after the death and 1.5 years after expiration of the statute of limitations, HSG moved for summary judgment on the grounds there was no evidence Dr. Garrison caused Ms. Gray’s death. Plaintiff then amended the complaint “to clarify” that Dr. Ellis was the doctor for whom HSG was vicariously liable. HSG moved for summary judgment on this claim as well, claiming expiration of the statute of limitations and relying on Thomas v. Medical Center of Central Georgia.

The Court of Appeals held that Plaintiff “simply corrected a misnomer” and that the claims against Dr. Ellis were exactly the same as the claims against Dr. Garrison, as distinguished from the Thomas case. The Court reasoned that there was no surprise to HSG and that Plaintiff properly submitted an amended affidavit with opinions against Dr. Ellis.

This decision stands out from other appellate decisions regarding “misnomers,” which has historically been used to correct the wrong name for the right person, as opposed to substituting one person for another. The Court did not address the statute of limitations argument in the decision.

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Georgia Court of Appeals Reverses for Exclusion of Affidavit

The Georgia Court of Appeals reversed a defense verdict on the grounds the trial court improperly “prohibited” a plaintiff from refreshing the recollection of a witness with an affidavit that was not disclosed in discovery.

Plaintiff alleged she suffered weakness in her legs, lost the ability to stand, and urinary incontinence following the second in a series of lower back injections performed by the defendant anesthesiologist. The second injection was performed on May 12. The anesthesiologist testified she assessed Plaintiff after the injection and there were no problems walking. The staff testified Plaintiff would not have been discharged if there were problems. On May 14, the anesthesiologist received a phone message from Plaintiff saying that her legs were “hardly working at all.” The anesthesiologist called Plaintiff, who said he was having spasms and pain, but did not mention other problems. The anesthesiologist testified she offered to see Plaintiff, among other things. Plaintiff disputed the anesthesiologist’s version of the events. Plaintiff testified that the anesthesiologist did not offer to see her and that she could not recall whether she told her about the urinary issues. On May 18, Plaintiff went to an orthopedist, who operated on her.

The key issue was the testimony of a fact witness doctor who employed the anesthesiologist, Dr. Gadlage. Plaintiff disclosed Dr. Gadlage’s name in interrogatory responses, but did not identify an affidavit she had obtained from Dr. Gadlage about a key phone conversation around May 14. It appears Plaintiff obtained the affidavit after responding to discovery initially, but did not supplement the discovery responses. Dr. Gadlage was listed in the pretrial order as a witness, but Plaintiff’s counsel told defense counsel that Dr. Gadlage was only a “character witness,” and would not be called on standard of care. Defendant did not depose Dr. Gadlage.

Dr. Gadlage testified at trial that he remembered talking with Plaintiff about pain, possibly weakness. He could not remember Plaintiff talking about the inability to walk or urinary incontinence. Plaintiff then sought to use the affidavit, presenting it for the first time. The defense objected. Plaintiff conceded at a sidebar that she had not disclosed the affidavit, believing it to be work product. The trial court prevented Plaintiff from using the affidavit, even to refresh Dr. Gadlage’s recollection. The defense won.

The Court of Appeals reversed, holding that prohibition of the use of the affidavit was legal error. Rather, the trial court should have continued the case, declared a mistrial, or allowed the defense to review the affidavit and take a deposition, if needed. The Court recognized that Plaintiff “acted purposefully” in failing to disclose the affidavit, but concluded that Dr. Gadlage was a known witness and that exclusion or prohibition was not the appropriate remedy.

The case is Anglin, et al. v. Smith, A16A1405 (October 12, 2016).

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Significant Regulations Added Regarding Arbitration Agreements in Long-Term Care Facilities that Accept Medicare and Medicaid Patients

Long-term care facilities, i.e., nursing homes, that accept Medicare and Medicaid patients will be subject to some significant changes in regulations on their ability to enter into arbitration agreements with patients.

New Rules and Requirements:

The changes are as follows:

  1. Pre-dispute binding arbitration agreements are prohibited;
  2. The facility cannot require the resident to sign a post-dispute arbitration agreement as a condition of the resident’s continuing to stay at the facility;
  3. The ability to enter into post-dispute arbitration agreements with patients are subject to the following regulations:
    1. The facility must explain the agreement to the resident in a form, manner, and language that the resident understands and have the resident acknowledge that he or she understands the agreement;
    2. Guardians or representatives of the resident cannot consent to an agreement for binding arbitration on the resident’s behalf unless that person was allowed to do so under state law and has no financial interest in the facility;
    3.  The agreement cannot contain any language prohibiting or discouraging the resident or any other person from communicating with federal, state, or local officials regarding any matter;
    4.  The facility must inform the resident that he or she is waiving his or her right to a jury trial;
    5.  The facility must provide for the selection of a neutral arbitrator and a venue convenient to both parties; and
    6.  Any agreement for binding arbitration must be separate and distinct from any other agreement or paperwork addressing any other issues.

The new rules, when first proposed by the Department of Health and Human Services, met with a myriad of comments from the public – legal officials, medical care providers, and politicians.  The Department stood firm in its proposal, and the new regulations will take effect on November 28, 2016.

Looking Ahead:

The Department addressed one comment in a manner that leads us to believe that we should be on the lookout for similar changes in the next few years.  The commenter pointed out that other Medicare and Medicaid healthcare providers utilize arbitration agreements regularly.  Therefore, the commenter asked, why were other providers not subject to the same requirements as long-term care facilities?  In response, the Department stated that regulations on the use of arbitration agreements by other providers are “beyond the scope of this rule.”  However, it continued, “we will retain this comment for review in case there is future rulemaking in this area.”

As always, medical professionals and facilities providing care to Medicare and Medicaid patients need to be vigilant about new and/or changing regulations affecting their practice.

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Court of Appeals Carefully Distinguishes Medical Malpractice From Ordinary Negligence In Case Resulting In Wrongful Arrest

After writing a prescription for 120 pills of hydrocodone, Tami Carter’s doctor decided to change the quantity from 120 to 180.

When she took the prescription to Walgreens, an employee assumed that Ms. Carter altered the prescription and called her doctor’s office to verify the prescription. The on-call physician, a different person than the prescribing doctor, was not aware of the change and did not verify if his partner had done so.

When Ms. Carter returned to Walgreens, she was arrested on the spot.

She filed two claims: one against the prescribing physician for altering the prescription rather than writing a new one; the other against the medical practice for failing to verify the change.

The Court of Appeals dismissed the claim against her doctor, finding that the claim called into question his professional judgment in altering the quantity of pills prescribed, and that Ms. Carter did not attach an expert affidavit to her complaint as required in Georgia for a medical malpractice case.  The Court reiterated that “[the] resolution of whether an act or omission sounds in simple negligence or medical malpractice depends on whether the conduct…involved a medical judgment.”  Her claim against the practice, on the other hand, did not suffer the same fate.

The Court found that failing to make an effort to verify the prescription, or having a procedure in place to do so, did not involve professional skill or judgment.  Thus her claim against the practice was permitted to go forward.

There have been a number of cases involving the distinction between ordinary negligence and medical malpractice recently.  While hospitals and many large medical groups have in-house counsel to help guide and counsel practice procedures in order to avoid these types of cases from ever arising, most of the smaller medical practices do not have that luxury. It would be wise to pay attention to these types of decisions as they come out as they tend to be very fact-intensive, and can help prevent avoidable claims against the practice.

*The case is Carter v. Cornwell, 2016 Ga. App. LEXIS 528 (Sept. 21, 2016).

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Georgia Court of Appeals Holds that Fall from Wheelchair is Ordinary Negligence

The Georgia Court of Appeals has held that a claim against a hospital for the negligence of a nurse involving the fall of a patient from a wheelchair is not a claim that requires an expert affidavit. Plaintiff is an elderly patient who used a cane to walk. Seeing the patient struggle, a nurse offered the patient a wheelchair for transport in the hospital. After moving the patient through the treatment area without incident, the nurse wheeled the patient back to the waiting room. Along the way, they encountered a door through which the wheelchair would not fit. The patient lifted out of the wheelchair but their pants leg got caught on the foot pedals. The patient fell and was injured.

Plaintiff filed the suit without an expert affidavit, claiming ordinary negligence. The trial court granted summary judgment to the hospital. The Court of Appeals reversed, holding that the record did not demonstrate that only medical people could transport the patient with a wheelchair. Similarly, the record showed that the nurse failed to follow the manufacturer’s instructions, forming the basis for the ordinary negligence claim.

As an aside, in a footnote, the Court noted that the hospital moved for a setoff of the patient’s medical bills for sums not charged or which the hospital paid for the patient. The Court declined to rule on that part of the appeal because the trial court did not rule on it.

The case is Byrom v. Douglas Hosp., 2016 Ga. App. LEXIS 543 (Oct. 4, 2016).

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Liability Insurers May Be Liable To Double Payment For Failure To Reimburse Medicare Providers

In a case of first impression in the 11th Circuit, the Court of Appeals held that a private insurance company operating as a Medicare Advantage Organization can sue a primary payor that refuses to reimburse the MAO for a secondary payment.

Prior to 1980, Medicare paid for all medical treatment within its scope and left private insurers to pick up the rest.  In 1980, in an effort to lower Medicare costs, Congress enacted the Medicare Secondary Payer Act (MSP), which inverted that system: private insurers paid first and Medicare paid what was left.

42 U.S.C. § 1395y(b)(2)(B), entitled “Conditional payment,” describes the manner in which Medicare can make a conditional payment notwithstanding its status as secondary payer.  When the primary plan does not fulfill its duties, the government may make a payment conditioned on reimbursement from the primary insurer.  If the primary insurer does not reimburse the government, then it is liable in the amount of twice the payment owed.

Under the Medicare Advantage program, private insurance companies can operate as Medicare Advantage Organizations.  As a MAO, the insurer agrees to provide Medicare benefits in return for a per capita fee from the government.

In this case, Mary Reale was injured at a condominium complex and brought suit against the complex.  Humana, as a MAO, covered Mrs. Reale’s medical bills.  In the meantime, Mrs. Reale settled with the complex and its insurer, Western Heritage Insurance Co.  Because the MSP provides that Medicare payments are secondary if any other insurer, including a tortfeasor’s insurer, is liable, Humana sought to recover from Western Heritage.  Western Heritage refused to pay, arguing that the Medicare statute only allows the Secretary of Health and Human Services to make conditional payments.

The Court looked to the regulations governing the Centers for Medicare & Medicaid Services.  Under 42 C.F.R. §422.108(f), an MAO “will exercise the same rights to recover from a primary plan…that the Secretary exercises under the MSP regulations….”  The Court then applied 42 U.S.C. § 1395y(b)(3)(A), which provides that, if a primary insurer fails to reimburse the Government, then damages “shall be in an amount double the amount otherwise provided.”  Therefore, the Court upheld an order awarding Humana twice the amount it was originally owed by Western.

*The case opinion can be found at Humana Medical Plan, Inc. v. Western Heritage Ins. Co., 2016 WL 4169120 (11th Cir. Aug. 8, 2016).

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