It is an axiom of American jurisprudence that a right of
action, once acquired, can be lost with the passage of
time. Thus, In Ohio, actions for bodily injury or property
damage must be commenced within two years after the injury
or damage occurs. The law, however, gives claimants under
a “disability” extended periods of time in which to bring
an action. Persons of “unsound mind” and persons within
the age of minority (less than eighteen years) are not
required to file an action until after the “disability” is
removed. For a person under eighteen, the “disability” is
removed when the age of eighteen is attained.
But what happens when a guardian is appointed for a person
of “unsound mind”? With the appointment of the guardian,
is not the disability removed because of the guardian’s
ability (and legal duty) to seek redress on the ward’s
behalf?
These are the questions that were before the Supreme Court
of Ohio in Weaver v. Edwin Shaw Hospital, a case of first impression decided last December.
At age 17, Morgan Weaver suffered a traumatic brain injury
from a bicycle-auto accident. Subsequently, while a
patient at Edwin Shaw Hospital and at HealthSouth of Erie
Rehabilitation Hospital, he allegedly sustained injuries
in falls from wheelchairs at both facilities. Following
the incidents (but not because of them), he was
adjudicated an incompetent (a probate court found him to
be of “unsound mind”), and his parents were appointed his
legal guardians. The parents subsequently filed medical
negligence claims against the hospitals for injuries from
the wheelchair incidents. Medical negligence claims are
subject to a one-year statute of limitations, and the
hospitals moved for dismissal on grounds that the claims
were filed outside that period. The trial court agreed and
dismissed the actions.
On appeal to Ohio’s Fifth Appellate District, the trial
court’s decision was reversed. The appellate court held
that although guardians had been appointed for Morgan
Weaver his “disability” hadn’t been removed and the
statute of limitations was suspended. On application of
the hospitals, the supreme court accepted a discretionary
appeal.
The court held that the appointment of a guardian for a
person of unsound mind neither removes the disability nor
commences the running of the statute of limitations. The
court reasoned that “disability,” as used in the tolling
statute, refers to the status of the person entitled to
bring an action, i.e., the ward. It then concluded
that the tolling statute applies until “the disability is
removed,” that is, until Morgan’s mental abilities are
restored. The Weaver court held that a person’s
lack of capacity to commence a legal proceeding, as the
hospitals argued, is not the “disability” used in the
statute; rather, that “disability” refers to Morgan’s
mental condition.
While the court’s decision is in line with the rule in the
majority of jurisdictions, there are compelling arguments
against it: The concern for protecting the right of
disabled persons to sue, which underlies the tolling
statute, doesn’t arise where a guardian has been
appointed; the date of a guardian’s appointment provides
certainty in deciding when the statute of limitations
begins to run; and holding the guardian to a statute of
limitations will work to assure that claims are brought
promptly, to the benefit of all parties. The court,
however, didn’t address the policy concerns but confined
its analysis to the language of the statute, concluding
that since the legislature did not state that the tolling
ended upon the appointment of a guardian, it wouldn’t read
that qualification into the statute.
The court did not defend the soundness of its decision,
writing instead that policy considerations are “best left
to the general assembly.” For caregivers or others whose
work entails contact with persons under a mental debility,
the message to take from the Weaver decision is
that damage claims brought on behalf of such persons may
never be time-barred, unless relief is provided by new
legislation.
Philip Howes
is a Partner of the
Health & Medicine and Litigation Practice Groups. He can be contacted at
phowes@bdblaw.com
or
330.491.5239.
Tom
Himmelspach
is a Partner of the
Health & Medicine Practice Group. He can be contacted at
thimmelspach@bdblaw.com
or
330.491.5284.
By
Tom Himmelspach
While the law of medical negligence is generally known,
many are unfamiliar with the parallel, federal-law system
that poses unique liability risks in the area of emergency
medicine. In 1986, Congress enacted the Emergency Medical
Treatment and Active Labor Act (“EMTALA”), commonly known as the “Patient Anti-Dumping Act.”
Although enacted to prevent hospitals from refusing to
treat patients who are unable to pay, it applies to all
patients without regard to their financial resources.
Anyone harmed as a result of a hospital’s violation of the
statutory requirements may recover damages under EMTALA.
Hospital emergency departments have two duties under
EMTALA: to provide an “appropriate medical screening
examination” to determine whether an emergency condition
exists and, if so, to stabilize the condition before
discharging or transferring the patient.
Screening Requirement
EMTALA requires that hospitals provide “an appropriate
medical screening examination within the capability of the
hospital’s emergency department….” A screening is
“appropriate” if it conforms to the hospital’s screening
procedures, and is reasonably calculated to identify
critical medical conditions that may be afflicting the
patient. It isn’t a guarantee of a proper diagnosis, and
the question of whether a provider met the screening
requirement isn’t decided under a negligence standard.
Rather, an appropriate screening is one that is applied
uniformly to all emergency room patients.
When a hospital fails to give an emergency room patient
the same screening it regularly gives to others under
similar circumstances, and the variation is more than
de minimis, it can be liable for damages under EMTALA.
For example, in Correa v. Hospital of San Francisco, a woman who entered a hospital with complaints of chest
pain was given a number (forty-seven) and told to wait.
She left the hospital after waiting over two hours and
went to another facility where she died from hypovolemic
shock. The court held that the hospital violated the
EMTALA screening requirement.
Stabilization Requirement
If the screening discloses that the patient has an
emergency medical condition, the provider must stabilize
the patient before discharge or transfer. Most courts have
held the requirement applies only when the provider has
actually identified an emergency condition. In other
words, if the provider did an appropriate screening and
discharged the patient without identifying an emergency
medical condition, it isn’t liable under EMTALA, even
though it may have been negligent in failing to diagnose
the condition.
Once the provider determines that the patient has an
emergency medical condition, it must use measures
appropriate under the circumstances to stabilize the
patient. The duty applies only where the patient is
discharged or transferred; most courts have held it
doesn’t continue after the patient is admitted.
What does a provider have to do to “stabilize” a patient?
As in the case of the screening requirement, EMTALA
doesn’t give the patient any guarantees. In the trial of
an EMTALA claim, the jury will consider whether the
treatment and subsequent release or transfer were
“reasonable in view of the circumstances that existed at
the time the hospital discharged or transferred the
individual.” EMTALA requires that the provider “assure,
within reasonable medical probability, that no material
deterioration of the condition is likely to result from or
occur during the transfer” or discharge.
Whether or not the patient is stabilized at the time of
discharge or transfer is typically a judgment call, and
courts will review the record for signs of acute distress.
Hospitals transferring or discharging patients from
emergency rooms face liability risks in cases where the
patient’s stabilization is tenuous. The risks underscore
the importance of thorough documentation of patient care,
monitoring, and assessment.
Procedural issues
EMTALA claims are subject to a strict two-year statute of
limitations. The Ohio-law provision for 180-day letters to
extend the statute of limitations in a medical negligence
case won’t apply to an EMTALA claim. Likewise, there is no
tolling of the statute for minors or persons under a
disability.
Congress provided that plaintiffs suing under EMTALA can
recover “those damages available for personal injury under
the law of the state in which the hospital is located….”
Because EMTALA claims don’t involve the standard of care
inquiry used in medical negligence cases, there’s a
dispute among the courts whether state-law damage caps on
medical negligence claims apply to EMTALA lawsuits. Any
state-law damage caps generally applicable to tort claims,
however, would apply.
Conclusion
This overview highlights only the major points of EMTALA,
and there are many sub-areas within the broad discussion
headings where the law affects emergency medicine
practice.
If you have questions concerning the law, please contact
us.
Tom
Himmelspach
is a Partner of the
Health & Medicine Practice Group. He can be contacted at
thimmelspach@bdblaw.com or
330.491.5284.
Q & A: The
Implications of the Revised Regulation to the Fair Labor
Standards Act
By:
Jan
E. Hensel
How have the new
regulations changed overtime requirements for nurses and
other health care professionals?
The most significant change
is the raise in the minimum salary level to $455 per
week. As of August 23, 2004, most employees who earn less
than $455 per week will be entitled to overtime,
regardless of their duties.
Additionally, the new regulations clarify that LPNs are
not exempt under the professional exemption and must be
paid overtime pursuant to the Act. RNs have always been
considered to be exempt professionals; they are still
exempt under the new rules. The new regulations also
verify that registered or certified medical technologists,
dental hygienists, and physician assistants fall within
the learned professional exemption, while paramedics and
other first responders do not.
What requirements must an
employee meet to be exempt from the minimum wage and
overtime requirements of the Fair Labor Standards Act (“FLSA”)?
There are
two tests that apply to most of the “white collar”
exemptions to the overtime requirements of the Fair Labor
Standards Act:
1.
Compensation to the employees must meet the “salary test”;
and
2. Their
job duties must satisfy one of the “duties tests” set
forth in the regulations promulgated by the U.S.
Department of Labor for the executive, administrative,
professional, computer employee, outside sales, or highly
compensated employee exemptions.
What is required for the
employee’s compensation to meet the “salary test”?
Employees
must receive a predetermined salary amount each pay
period. That amount cannot be subject to reduction
because of variations in the quality or quantity of the
work performed. The employee must receive the full salary
for any week in which the employee performs any work
without regard to the number of days or hours worked. The
minimum salary level for most employees qualifying for the
executive, administrative and professional exemptions is
$455 per week.
Are there any exceptions to the rule that the employee
must be paid his or her entire salary, without reduction,
for each week in which the employee performs any work?
Yes, there
are seven specific exceptions to the no reduction in
salary rule:
1.
Deductions when an employee is absent for one or more full
days for personal reasons, other than sickness or
disability.
2.
Deductions for absences of one or more full days for
sickness or disability, if made in accordance with a bona
fide plan, policy or practice of providing compensation
for such absences.
3. The
employer can off-set any amounts received as jury fees,
witness fees, or military fees (cannot deduct full pay).
4.
Deductions for penalties imposed for violations of major
safety rules.
5.
Deductions for disciplinary suspensions of one or more
full days for infractions of workplace conduct rules, made
pursuant to a written policy applicable to all employees.
6.
Deductions where the employee works less than a full week
in the employee’s initial or terminal week of employment.
7.
Deductions for FMLA leave.
Are there any alternatives to
paying exempt employees on a salary basis?
Those
employees who are exempt pursuant to the professional,
administrative or computer exemption may be paid on a fee
basis: a set amount per task or single job. However, to
qualify for the exemption, the employee must be paid
strictly on a fee basis; if the employee is paid hourly
for some tasks and on a fee basis for others, the employee
will not qualify for the exemption.
Is there any way an employer
who inadvertently makes improper salary deductions can
protect itself from losing the exempt status of its
employees?
Yes. The
new regulations contain a “safe harbor” rule, which
provides an opportunity for the employer to maintain the
exempt status of an employee even if improper isolated or
inadvertent salary deductions have been made. To qualify
for the safe harbor, the employer must:
1.
Have a
clearly communicated policy that prohibits improper pay
deductions;
2.
Have in
place a mechanism to handle employee wage and hour
complaints;
3.
Reimburse the workers for any deductions improperly made;
and
4.
Make a
good faith commitment to comply with the act in the
future.
What is the duties test for the executive exemption?
For an
employee to be an exempt executive, his or her duties must
meet all of the following requirements:
1.
The
primary duty must be the management of the enterprise or a
customarily recognized department or subdivision of the
enterprise;
2.
The
employee must customarily and regularly direct the work of
two or more other employees; and
3.
The
employee must have the authority to hire or fire other
employees, or the employee’s recommendations regarding
hiring and firing must be given particular weight by the
decision-makers.
What duties must an employee
perform to fall within the administrative exemption?
To be exempt
under the administration exemption, the employee’s duties
must meet two qualifications:
1.
The
employee’s primary duty must be performing office or
non-manual work directly related to the management or
general business operations of the employer or the
employer’s customers; and
2.
The
employee must exercise discretion and independent judgment
with respect to matters of significance.
How are the duties of an exempt professional defined?
To be exempt
as a learned professional, the employee’s primary duty
must be:
1.
Performing work that requires advanced knowledge;
2.
The
advanced knowledge must be in a field of science or
learning; and
3.
The
advanced knowledge must be customarily acquired by a
prolonged course of specialized intellectual instruction.
Do nurses qualify for the professional exemption?
Registered
nurses generally qualify for the professional exemption.
The Department of Labor has specifically articulated,
however, that LPNs do not meet the professional exemption
because the knowledge required for the position of LPN is
not customarily acquired by a prolonged course of
specialized intellectual instruction.
Are there any circumstances in
which an LPN can be exempt from the overtime requirements
of the Fair Labor Standards Act?
Yes. If an
LPN’s job duties meet the description of another
exemption, the LPN would be exempt. For example, if the
assistant director of nursing is an LPN, and his or her
primary duty is management of a customarily recognized
department of the facility, he or she customarily and
regularly directs the work of two or more other employees,
and he or she has the ability to hire or fire other
employees, or his or her
recommendations regarding the hiring and firing of other
employees is given particular weight, the LPN would be
exempt as an executive.
Likewise, if an LPN holds a position, such as Staff
Development Coordinator, in which his or her primary duty
is the performance of office or non-manual work directly
related to the management or general business operations
of the employer, and he or she exercises discretion and
independent judgment with respect to matters of
significance, the LPN would fall under the administrative
exemption.*
What is the new exemption that
has been created for highly compensated employees?
Employers
may classify a worker as exempt under the executive,
administrative or professional exemption if he or she:
1.
Earns at
least $100,000 a year, at least $455 per week of which is
paid on a salary basis;
2.
Performs
a primary duty of office or non-manual work; and
3.
Customarily and regularly performs at least one of the
exempt responsibilities falling under the executive,
administrative, or professional duties test.
*If you have an LPN functioning in a capacity where you
believe she/he is exercising independent judgment, please
review the standards of nursing practices to ensure
compliance with the law, then contact your attorney for
additional guidance.
__________________________________
Jan Hensel is a Shareholder in the
Employment & Workers' Compensation Practice
Group. She can be reached at
jhensel@bdblaw.com
or
614.227.4267.
|
|
|
David Abromowitz joined Buckingham, Doolittle &
Burroughs as a partner in 2004, bringing his extensive
knowledge of healthcare law to the firm’s Health and
Medicine Practice Group. He bases his practice in the
Columbus office.
David became familiar with the medical world early in
life. “My father is a physician,” he explains. “He had
a family practice in Dayton, Ohio which he has
recently retired from. My sister is a physician, as
well as my brother-in-law, and I have nine first
cousins who are physicians. I’ve been surrounded by
doctors all my life!”
As an undergraduate at Washington & Jefferson College,
David considered a career in medicine, but instead
gravitated toward political science and participated
in college law societies. “I decided on a law degree,
and when I graduated from the University of Dayton Law
School I knew I wanted to focus on healthcare and help
physicians with the challenges they face.”
Working with physicians has given David a great deal
of satisfaction. “Physicians feel they are under siege
in today’s climate,” he says. “They have problems with
reimbursement, with increasing overhead, with federal
regulations, with malpractice insurance – and all they
want to do is help their patients. Even though I’m not
a physician, I know what they’re going through, and I
want to help.”
Being familiar with the issues facing physicians,
David provides counsel that addresses the needs of
physicians and allows them to focus on the vital work
of treating patients. He maintains a flexible
schedule, and often meets with physicians at 7 a.m. or
7 p.m. to fit into their day. “Most of all, physicians
want an advisor and counselor to add value to their
practice. They want cost-effective work.”
“These are difficult times for physicians, but they
can also be exciting times,” David says. “We offer
clients ideas on streamlining and increasing revenue
that can strengthen their position. My colleagues
and I can be a positive tool for a medical practice.”
|
HIPAA SECURITY
RULE: COMPLIANCE
DEADLINE!
Have you complied with HIPAA’s
Security Rule? The Security Rule directs covered entities
to use certain administrative, physical, and technical
safeguards to protect the confidentiality, integrity, and
availability of “electronic protected health
information.” Covered entities—health care providers,
health plans, and health care clearinghouses—must comply
with the Security Rule by April 20, 2005 (small
health plans have an additional year to comply). For
assistance in assuring that you comply with the Security
Rule, contact
Shila Nalawadi,
Don Antrim, or
Joe Feltes.
____________________________________
Covered entity may disclose
protected health information in lawsuit as long as
safeguards are taken. The Office for Civil
Rights (a division of the United States Department of Health and Human Services)
explained when protected health information (“PHI”) can be
disclosed in litigation in nine FAQs announced on January
19, 2005. Covered entities (i.e. providers, payers, and
clearinghouses) under HIPAA do not have to account for
disclosures of PHI for litigation if the individual has
authorized the disclosure or if the disclosure is part of
the covered entities’ health care operations and the
covered entity is a party to the litigation. The FAQs
also address whether a covered entity not a party to a
legal proceeding may disclose PHI in a legal process (e.g.
subpoena) without a court order (answer: yes, if certain
requirements are met).
If a disclosure is made, safeguards must be taken by the
covered entity to make “reasonable efforts” to limit the
disclosure to the “minimum necessary” to accomplish the
disclosure’s purpose.
For assistance on this topic, contact
Shila Nalawadi,
Don
Antrim, or
Joe Feltes. You can access the FAQs yourself
at
http://www.hhs.gov/ocr/hipaa/
OFFICE OF INSPECTOR GENERAL UPDATES
OIG
approves hospital chipping in
for key physicians’ insurance.
On
December 30, 2004, the OIG issued an opinion (No. 04-19)
approving a hospital’s request to pay the increased cost
of key physicians’ malpractice insurance premiums. Such
an agreement will only have the OIG’s approval if the
following factors are met: 1) the premium support does not
depend on the physicians’ referrals, 2) premium hikes
alone are reimbursed, not the premiums the physicians paid
before, and 3) there is clear need in the community for
the key physicians’ services. You can read the opinion at
http://www.compliancealert.net/ao0419.
OIG
approves hospital gainsharing
plans.
On February 18, 2005, the OIG
issued two more advisory opinions approving gainsharing
arrangements. These gainsharing agreements are almost
identical to the last four cost-sharing arrangements the
OIG permitted. Both advisory opinions allow a hospital to
give a group of cardiac surgeons it employs 50% of the
money it saves by opening and using only necessary
supplies.
§
Opinion No. 05-05 referred to an arrangement
in which a hospital would share with a group of
cardiologists the first-year cost savings expected to
result from specific practices in the cardiac
catheterization lab.
§
Opinion No. 05-06 dealt with an arrangement
between a hospital and a group of cardiac surgeons in
which the hospital would share with the group the
first-year cost savings expected to result from measures
taken to reduce wasteful use of supplies in operating
rooms.
The OIG found that these gainsharing agreements implicated
both the civil monetary penalty provision and the
anti-kickback law. Despite the potential for violations,
the OIG decided not to impose administrative sanctions
based on the protections incorporated into the gainsharing
agreements.
You can read these opinions at
http://oig.hhs.gov/fraud/advisoryopinions/opinions.html.
OIG supplements compliance program
guidance.
The OIG published its first Supplemental Compliance
Program Guidance for Hospitals on January 31, 2005.
Importantly, it details what the OIG examines when
deciding if a compliance program is “effective.” The
document identifies areas susceptible to fraud and abuse,
identifies claim submissions as the biggest risk area for
hospitals, and gives examples of hospitals that improperly
claimed supplemental payments.
The OIG states that its supplemental guidance may be used
as a benchmark for hospitals’ effective compliance
programs. Such programs should prevent, detect, and
correct compliance issues to be effective, and the
programs should be reviewed at least once a year. The OIG
details that an “effective” compliance program must have a
unit with the resources and autonomy to enforce
compliance, systems to assist employees’ compliance, open
communication for the detection of problems, annual
training, and auditing and monitoring procedures in
place.
The OIG has issued compliance program guidance in several
areas of practice including individual and small group
physician practices and clinical laboratories. You can
access all of the OIG’s compliance program guidelines at
http://oig.hhs.gov/fraud/complianceguidance.html.
If you have questions or concerns about any of these OIG
updates, please contact
Tom Hess,
Don Antrim,
Bob Preston,
or Joe Feltes.
In February, 2005,
Richard S. Milligan, Buckingham Canton
In
March, 2005,
