Legal Trends

On January 4, 2001 HCFA released Phase I of the final regulations interpreting Stark II, more commonly known as the physician self-referral statute.  Stark I prohibits physicians from referring Medicare benificiaries to any clinical lab in which the physician or family member has a financial interest.  In Stark II this was expanded to include certain designated health care services including PT and OT services, radiology services, clinical lab services and home health services.  The new regulations attempt to clarify the scope of the self-referral prohibition by defining terms such as "referral," "designated health services," and "financial relationship."  Sanctions for violating Stark include civil monetary penalties, mandatory refunds, denial of Medicare reimbursement and potential exclusion from the Medicare program so it is imperitive all health care providers become familiar with the new regulations.

A child injured as a passenger in a motor vehicle accident driven by his mother was entitled to underinsured motorists coverage under policies issued by his parent's employers where the uninsured/underinsured motorist provisions in the policies did not limit coverage to employees acting in the scope of employment decides a common pleas judge in Congrove v Wausau Insurance Companies LW 113-015-00 issued 1/8/01.

On December 20, 2000 President Clinton released the final privacy regulation under HIPAA.  It is anticipated it will cost the health care industry and employers over $17.6 billion over the next 10 years to comply with this regulation.   Some highlights from this regulation include: 

1. Doctors and hospitals will be required to obtain a patient's written consent to use their health care information for routine purposes such as treatment and payment.
   
   
2. Health care providers and plans will be required to establish business policies geared toward protecting patient information to ensure appropriate safeguards are in place to protect patient information including designation of a "privacy officer."
   
   
3. This new regulation restricts the information that is used and disclosed to the minimum amount necessary to comply with requests of employers and other entities.
   
   
4. Health care providers and plans will be required to inform patients as to how their information is being used and to whom it is being disclosed.

The Ohio Supreme Court has now ruled that adult emancipated children can recover for loss of parental consortium.  See Rolf v Tri State Motor Transit Co. 91 OhioSt.3d 380.   The previous law was that only minor children had this cause of action.

On May 3, 2001 the Eight District (Cuyahoga County) Court of Common Pleas issued a ruling that R.C. 3937.182 precludes insuring against punitive damages awarded based on individual's malicious, willful or intentional conduct. It does not, however, preclude coverage for statutory punitive damages awarded without any finding of malice, intent or ill will. Accordingly, they held that R.C. 3927.182 did not preclude coverage for Corinthian for this claim.  See Corinthian v Hartford LW 108-285-01.

On June 28, 2001 the Ohio Supreme Court ruled that Ohio Revised Code 4123.931, which permits the Bureau of Workers' Compensation and self-insured employers to assert subrogation claims against judgments or settlements obtained by injured workers, violates the Ohio Constitution's guarantee of a remedy for injury and prohibition against the taking of private property without just compensation (decision answers certified questions from the U.S. District Court for the Northern District of Ohio).
- Holeton v. Crouse Cartage Co.
(Lawyers Weekly No. 100-211-01

On July 9th the Eight District Court of Appeals held a grocery store shopper who tripped over a metal rail could maintain a negligence claim even though the hazard may have been open and obvious.  This could significantly alter the landscape of premises liability litigation in Ohio making it much harder to get summary judgment.

In a claim involving the Nursing Home Patients' Bill of Rights, ORC Ch. 3721, an action was brought against unlicensed assisted-living facility's owner and operator and resident's personal physician arising out of alleged failure to provide resident adequate and appropriate medical treatment and nursing care. Trial court erred in granting summary judgment to operator and owner on basis that facility was not a "home" under ORC §3721.01(A)(1)(a) because definition of "home" applies to unlicensed as well as licensed facilities. Also, while director of health has enforcement and licensing authority, he does not have exclusive jurisdiction to determine if a facility is a "home" for purposes of this statute. Trial court did not err in granting summary judgment for personal physician since ORC §3721.17(I) does not create a resident's cause of action for a violation by a personal physician. See Peskin v Seasons Health Care 141 Ohio App3d 436.

The Ohio Legislature has been contemplating HB 412 which is working it way through committee.   It currently stands as of March 11, 2002:  

HB 412            NURSING CARE LIABILITY (Seitz) Relative to the results of a home inspection or nursing facility survey, liability of a residential care facility or a home for employee actions, liability of a residential care facility or a home for punitive damages, and expansion of the definition of “medical claim” in the state of limitations. AMENDED

 The bill was reported by a 6-1 vote of members present; Rep. Joyce Beatty (D-Columbus) cast the dissenting vote. Six amendments, as follows, were adopted:

 --allows a spouse, parent or an adult child to bring a claim on behalf of a resident in a nursing home (Willamowski);

--clarifies that no provision of the bill applies to workers’ compensation proceedings (Seitz);

--requires that when a claim is filed, the Ohio Department of Job and Family Services receives notification (Seitz). Mr. Seitz explained that the amendment seeks to preserve the department’s subrogation rights.

--adds a severability claims to the uncodified section of the bill (Seitz).

--clarifies that any government agency can use state and federal surveys and inspection reports in enforcement proceedings (Seitz).

--deletes language regarding the use as evidence the care and treatment provided to other home residents by a plaintiff’s attorney to help support a claim by establishing patterns of care (Jerse).

 The committee heard proponent and opponent testimony. Dan Stewart, representing the Service Employees International Union, said the bill would be unnecessary if the quality of care was improved at nursing homes, as well as increasing staffing. He also suggested that there has been a lack of evidence to support claims that increased litigation against nursing facilities has made insurance more expensive or even inaccessible. “Insufficient care and short staffing turns into poor care,” Mr. Stewart said. He also noted that the protections contained in the bill apply only to nursing facilities. “What other industry would have these protections,” he asked. “We need to be looking at better staffing and improving quality” but helping the best-performing homes, he concluded.

 John Saulitis of Youngstown, representing District 11 Area Agency on Aging, returned to present the committee with copies of a recent report issued by the General Accounting Office regarding nursing homes and problems found with homes, although as Sponsor Seitz noted, none of the homes included in the study were located in Ohio.

 Clark Law, representing the Association of Ohio Philanthropic Homes, and Orson Peck, representing himself, appeared in support. Mr. Law provided information to the committee regarding the insurance issue in Ohio and noted that some homes have been advised that accepting “multiple-medical needs” clients may jeopardize their insurance. He also pointed out that the bill does not affect any patient rights conferred by current Ohio law. Lawsuits, he said, should be about a “matter of harm” to a patient, not about other factors that may be contained in a survey or inspection report dealing with subjects unrelated to the alleged harm suffered by a resident. He also provided a letter from the chair of the Statewide Resident Forum, which represents the interests of home residents, in support of the bill. Mr. Peck said insofar as possible, problems in nursing homes should be addressed by legislation and not in the courts; he also recommended that punitive damages awarded by courts in patient actions should go to provide funding for Ohio’s long-term care ombudsman program.

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