Thursday, January 30, 2014


Physicians naturally worry about medical malpractice suits, but there are other beasts in the jungle.

1.  Elder Abuse.  States have adopted legislation to protect elders against abuse.  Besides protecting elders, these laws create a potential cause of action against physicians that is not malpractice and may not covered by a physician's insurance carrier.  In many cases, these laws also provide that the party losing an elder abuse suit must pay the other party's attorney's fees.  In ordinary malpractice suits each party pays his own attorney's fees.  Damages may also be enhanced for pain and suffering.  Pain and suffering damages in ordinary malpractice cases generally cease to exist if the patient dies, but they may continue to support a claim after the death of an elderly person, thus creating the potential of greatly enhancing the judgment.  Last, because an allegation of elder abuse can greatly increase the risks of a physician in litigation, it is becoming more common for plaintiff attorneys to 'enhance' an ordinary malpractice complaint with an allegation of 'elder abuse' if the plaintiff is a senior.

2.  Battery.  Battery is a tort (a wrong for which one can be sued) which consists of 'any unauthorized touching'.  A physician's malpractice carrier may assert a 'policy defense' and refuse to pay a judgment for battery.  An actual case cited in Bang (later post) involved a surgeon who had approval to operate on one ear of his patient.  Once she was unconscious he thought to check her other ear and decided it was in worse shape than the ear he intended to repair.  He operated on the other ear.  He was sued for battery because he had not received permission to operate on the other ear and, in fact, the patient alleged that that ear did not give her trouble until after the unauthorized surgery.

It seems likely that branding initials on a transplant patient's liver qualifies as battery.  It would certainly be battery if the surgeon did the brand after putting the liver in the patient's body, but it is a tougher question if he brands a liver in a pan before putting it in the body.  One suspects that the intention of putting it in the patient is sufficient in this case to make the liver a part of the body even while the liver waits in the pan, thus making it a fairly clear cut case of battery.  The surgeon is not going to have much fun explaining this one to a judge and jury.

3.  False Claims Act.  The False Claims Act is a federal Act that provides that any false claim for payment to the federal government (or cooperating agency) can be sued upon for treble damages.  That means that if your false claim is for $1 million, the government will seek to recover $3 million.  Erroneous bills sent to Medicare can be sued upon under the False Claims Act.

4.  Qui Tam Suits.  A Qui Tam suit is a suit brought by a private person on behalf of the government.  If your hospital billing department has been churning out erroneous Medicare bills an employee in the hospital (or any other person for that matter) can sue the hospital on behalf of the government.  If the suit wins, the government will take the major part of the judgment, but the private person who initiated the suit will also participate to some degree.

NEW 9/2/14:  Planned Parenthood in qui tam suit under False Claims Act.  Th e US Court of Appeals for the 8th Circuit has re-instated a qui tam lawsuit against Planned Parenthood of the Heartland in Iowa.  The allegations, among other things, billing for services that patients had already paid for by being pressured into making 'donations' to Planned Parenthood.  Much more can be found in the published opinion of the court which can be found here: 

If these same acts were committed by a physician or a hospital rather than Planned Parenthood we would probably see criminal prosecution as well as a civil action for treble damages.


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