Health Law Monitor

Candidate Selection in Deciding to Take a Malpractice Case to Trial – Does Jury Research Hold a Key?

April 2, 2025

To try or not to try, that is the question for lawyers and providers in medical malpractice cases. The pendulum in medical malpractice litigation has swung towards mandatory mediation for pre-trial resolution. But this trend begs the question: are we trying enough medical malpractice cases? What is the impact on the state of the law, the amount of settlements, and public opinion if there are not…

Intermediate Court of Appeals of WV Upholds Covid-19 Act Immunity

March 21, 2025

Price v. Raleigh General Hospital, a new opinion from the Intermediate Court of Appeals of West Virginia, is an important case for health care providers and other businesses in West Virginia because the court upheld the dismissal of a wrongful death action against the hospital and physician defendants under the immunity provisions of the Covid-19 Act.

In the midst of the Covid pandemic, the West…

Supreme Court to Decide Whether Federal Courts Will Enforce State Statutes Requiring Pre-Suit Affidavits Against Health Care Providers

March 10, 2025

On March 10, 2025, the Supreme Court of the United States agreed to hear Berk v. Choy, No. 23-1620, 2024 U.S. App. LEXIS 18336 (3d Cir. July 25, 2024), a case over whether a Delaware statute which requires service of an affidavit of merit before a claimant can sue a health care provider will be applied in cases filed in federal court.   This is important to health care providers because the Supreme…

Doctor’s Orders: New Indiana Bill Pushes to End Physician Non-Competes

March 7, 2025

Indiana is one step closer to a landmark change in healthcare employment. On January 28, 2025, the Indiana Senate passed Indiana Senate Bill 475 (“SB 475”), which, if signed into law, would outright ban employers from entering into physician non-competes with any physician after June 30, 2025. While it may seem like SB 475 is a sudden change, it is a natural continuation of the state’s…

Time to Check Your Organizational Chart For Dormant Tax-Exempt Entities

January 13, 2025

Does your company have any dormant tax-exempt entities in your organizational chart?  If so, read on.

In recent Private Letter Ruling (PLR) 202437007[1], the Internal Revenue Service (IRS) revoked the tax-exempt status of an organization. The organization had qualified as a tax-exempt supporting organization under Section 501(c)(3) and Section 509(a)(3) of the Internal Revenue Code (Code), and…

Beware: Compliance Deadline for HIPAA Reproductive Health Care Rule Fast Approaches

October 1, 2024

On April 26, 2024, the Office for Civil Rights (“OCR”) and the Office of the Secretary in the U.S. Department of Health and Human Services (“HHS”) issued a final rule entitled “HIPAA Privacy Rule to Support Reproductive Health Care Privacy” (“Final Rule”). The Final Rule strengthens the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule[1] by prohibiting the…

CCPA in Professional Liability Claims

August 21, 2024

In an effort to get around the American Rule of no recovery for attorney fees on negligence claims, an avenue sometimes explored is the addition of a claim under the Colorado Consumer Protection Act, C.R.S. §6-1-101 et seq. The Act provides for recovery of attorney fees by a successful plaintiff (but not a successful defense unless the claim is frivolous), and treble damages. C.R.S. §6-1-113(2).…

West Virginia Health Law 2024 Legislative Update

May 29, 2024

The grounds of the West Virginia Capitol Complex are quieter these days now that the West Virginia Legislature’s regular and first special sessions are complete. Below are a few noteworthy bills that will become effective soon (or which recently took effect) that may considerably impact the health care industry in West Virginia.

S.B. 325 - Relating to distribution of drugs to safety net providers…

We Won’t See You in Court: HHS Releases 340B ADR Final Rule

April 25, 2024

On April 19, 2024, the Health Resources and Services Administration (HRSA) and the U.S. Department of Health and Human Services (HHS) issued a final rule pertaining to the administrative dispute resolution (ADR) process for certain disputes arising under the 340B Drug Pricing Program (the “340B Program”).[1] The 340B Program derives from Section 340B of the Public Health Service Act (PHSA),[2]…

Health Care Providers are Protected Against Double Recovery by Plaintiffs Because W. Va. Code § 55-7B-9 (b) Requires Reduction of Jury Verdicts by the Amount of any Pretrial Settlements

March 15, 2024

Hot off the presses yesterday (3/14/2024) is Cummings v. Paine where the Intermediate Court of Appeals (ICA) affirmed that jury verdicts against health care providers must be reduced by the amount of any pretrial settlements.  

In Cummings, after the jury awarded $250,000 against a doctor and physician’s assistant, the circuit court adjusted the verdict by the percentage of fault assessed against…

HHS Releases Final Rule on Substance Use Disorder Confidentiality Requirements

March 1, 2024

The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights, in coordination with the Substance Abuse and Mental Health Services Administration, recently released a Final Rule which modifies the Confidentiality of Substance Use Disorder (“SUD”) Patient Records regulations located at 42 C.F.R. Part 2 (commonly known as “Part 2”)[1]. The statute upon which Part 2 relies, 42…

New Year, New Code List – But Same Stark Law

February 6, 2024

New Year’s Resolutions are often quickly abandoned as the warm glow and hopeful aura of the holidays are snuffed out by winter’s more frigid days. At least one recent survey claims that people give up on those optimistic goals around 3.74 months into the new year.[1] While Jack Frost may sweep away certain resolutions, those in the health care industry should hold fast to at least one goal…