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…
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…
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…
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…
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).…
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…
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…
In a recent post,[i] we highlighted the Fourth Circuit’s decision in Pledger v. Lynch, 5 F.4th 511, 520 (4th Cir. 2021). There, the Fourth Circuit held that the notice and certification requirements[ii] of West Virginia’s Medical Professional Liability Act (“MPLA”) are incompatible with the Federal Rules of Civil Procedure and therefore do not apply in federal court. Pledger’s holding sets the…
West Virginia’s Medical Professional Liability Act (“MPLA”), W. Va. Code § 55-7B-1, et seq., implements tort reform in medical malpractice actions. Pursuant to the MPLA, plaintiffs must serve two documents, a Notice of Claim and Screening Certificate of Merit, on each health care provider they intend to sue at least thirty days prior to filing a medical professional liability action.[1] The…
On July 3, 2023, the Office of the Inspector General (OIG) and the U.S. Department of Health and Human Services (HHS) published a final rule implementing information blocking penalties against two types of health care actors—health information networks (HINs)/health information exchanges (HIEs) and developers and offerors of health information technology (HIT).[1] The final rule became effective…
For years we have been facing Reptile tactics designed to increase verdicts. With each nuance in the strategies, defense counsel are often playing catch up as to how to battle them. Consulting services conduct studies on juror reactions and war stories are shared to determine how best to combat each new approach. A common one being addressed currently is the use of anchors. The attorney will…
On June 16, 2023, the United States Supreme Court handed down its decision in U.S. ex rel. Polansky v. Executive Health Resources, No. 21-1052. The decision may have a lasting impact on the quickly growing False Claims Act (“FCA”) qui tam litigation throughout the United States.
In Polansky, the Supreme Court held that the federal government has the authority to dismiss an FCA suit in which it…
