Health Law Monitor

Why Pledger’s Rejection of the MPLA's Notice of Claim and Certificate of Merit Requirements Matter to Healthcare Providers

January 30, 2024

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…

The Fourth Circuit Rejects Pre-Suit Notice and Screening Requirements in Medical Professional Liability Actions

November 28, 2023

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…

HHS Details Penalties for Certain Actors—But Leaves Providers Hanging

September 25, 2023

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…

ANCHORS AWAY: FIGHTING DAMAGE TACTICS

August 10, 2023

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…

Colorado Physician Assistants No Longer Require Physician Supervision

August 8, 2023

Effective August 7, 2023, physician assistants in Colorado will no longer be required to practice under the supervision of a physician. SB 083 allows most physician assistants to now practice collaboratively with a physician rather than under a supervisory agreement.

The collaborative agreement must include:

• The physician assistant's name, license number, and primary location of practice;
• The…

Indiana Doctor Sues Hospital to Block Physician Non-Compete Under New Indiana Law

August 2, 2023

On July 1, 2023, the new law restricting physician non-compete agreements went into effect in Indiana.  Four days later, the first case relying on these new provisions was filed in Allen County Superior Court, David Lankford, D.O. v. Lutheran Medical Group, LLC, 02D02-2307-PL-000261. 

In Dr. Lankford’s complaint, he alleges that the Hospital materially breached the terms of his employment agreement…

Supreme Court Confirms Government’s Discretion to Dismiss Qui Tam False Claim Act Lawsuits

July 7, 2023

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…

Supreme Court of Appeals of West Virginia Upholds Peer Review Privilege

June 16, 2023

The Supreme Court of Appeals of West Virginia issued a new opinion affirming the ban on discovery and use of peer review under West Virginia Code §30-3C-3.  In an opinion by Justice Bunn in Toler v. Cornerstone Hospital of Huntington, No.  No. 21-0830 (June 15, 2023), the Court held that the trial court correctly ruled that the plaintiff was not entitled to obtain an incident report related to a…

Indiana Law Restricts Physician Non-Competes (Both Existing and Future): Questions Employers Are Asking/Should be Asking

May 12, 2023

On May 4, 2023, Governor Holcomb signed into law Senate Bill 7, which will take effect on July 1, 2023. The new law significantly restricts the enforceability of physician non-compete agreements in Indiana, both existing and future agreements. Specifically, the statute (i) provides an outright ban of entering into noncompete agreements with primary care physicians after July 1, 2023, (ii) renders…

Expansion of HIPAA Privacy Rule for Reproductive Health Care

May 11, 2023

On April 17, 2023, the Department of Health and Human Services (the “Department”) issued a Notice of Proposed Rulemaking (“NPRM”) proposing to expand protections afforded by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule following recent legal events involving reproductive health care.[1]

This NPRM aims to strengthen the Privacy Rule protections by prohibiting…

Indiana Healthcare Employers Beware—Greater Protections for Physicians are on the Horizon

April 27, 2023

The Indiana General Assembly passed Senate Bill (SB) 7 on April 24, 2023, and it now heads to Governor Holcomb’s desk for signature. If signed into law, SB 7 would (i) ban noncompete agreements between a primary care physician and employer, (ii) render a noncompete agreement unenforceable upon certain events and (iii) specify a process by which a physician or employer may pursue mediation to…

West Virginia Health Law 2023 Legislative Update

April 21, 2023

West Virginia Health Law 2023 Legislative Update

The 2023 Regular Session of the West Virginia Legislature was not short on headlines, and bills impacting the health care industry often took center stage. During the last week of March 2023, all completed legislation that the governor had not already signed became law.  This occurred via a West Virginia constitutional provision that automatically…