Malpractice

PHYSICIAN-PATIENT RELATIONSHIP REQUIRED FOR MALPRACTICE ACTION

Dr. Schlinke, an Oklahoma physician, gave advice over the telephone to a medical colleague who was treating a pregnant woman, and that advice led to a premature delivery that, in turn, led to serious complications. Dr. Schlinke never saw either the mother or child or treated them in any way, but was named a defendant in a medical malpractice lawsuit, along with the treating physician and others. The trial court granted Summary Judgment to Dr. Schlinke, which was upheld by the Oklahoma Court of Civil Appeals. The Oklahoma Supreme Court granted Certiorari and rendered a decision recently sustaining the trial court's grant of Judgment.

The Supreme Court explained in its opinion that the law of Oklahoma requires the existence of a contractual relationship between a physician and the suing patient as a prerequisite to maintaining a malpractice action. Because Dr. Schlinke never entered into such a contract with the suing family, never treated either the mother or child, and never billed for services, he had no legal duty to the plaintiffs and the suit against him was properly dismissed. Without a physician-patient relationship being created, a medical malpractice action cannot be maintained against a physician.

The author, G. Michael Lewis, may be contacted at mlewis@dsda.com

Health Reform

HEALTH REFORM BILL ATTACKED

TThe Patient Protection and Affordable Care Act (PPACA) was signed into law on March 23, 2010, and amended by the Health Care and Education Reconciliation Act of 2010. PPACA has many parts. The first part is insurance reform. This includes many popular items such as the inability of health insurance companies to rescind a policy when someone becomes ill, the mandatory inclusion of a child until he or she reaches 26 and the prohibition against denying insurance because of pre-existing conditions. Since the law will bar insurers from excluding people with pre-existing conditions, the sick and elderly could be vastly over-represented in the insurance pool if other people are held back from purchasing insurance. Consequently, the law includes a mandate that effective in 2014 everyone must have health insurance through an employer plan or independently acquired. To make this happen, PPACA creates health insurance exchanges where individual s without employer-sponsored health insurance or those who cannot afford the employer's insurance can purchase insurance through exchanges administered by the State or a nonprofit organization. One of the many ways of paying for the expanded coverage described above is charging a penalty to individuals who do not have health insurance. This penalty will be paid as part of the individual's taxes.

At least a dozen lawsuits have been filed in federal court to challenge this law. The case that could carry the most weight has been filed in Pensacola, Florida. The primary issue in the lawsuit is whether the PPACA penalty for non-acquisition of insurance is a tax which exceeds the federal government's constitutional authority. Basically, the states bringing the lawsuit claim the federal government has no authority for the PPACA. But the federal government's response is that it has the authority to regulate health care under Article 1 Section 8 of the Constitution that allows Congress to regulate interstate commerce. The drafters of PPACA asserted in the text that the insurance mandate affects interstate commerce and labeled the penalty an "excise tax" which is typically protected by the Constitution. Further, there are many instances of the federal government regulating health care and issuing fines or penalti es for failure of compliance.

There are other very significant parts of PPACA which include alterations to the health care delivery system, such as payment bundling, coordinated care, evidenced-based medicine, accountable care organizations, value-based purchasing and collaborative care organizations. These are ideas to improve care and cut costs that will slowly be phased in under PPACA. These types of health care system changes have always been within the federal government's jurisdiction.

The judge in Florida has scheduled oral arguments in the case for September 14, 2010 on the government's motion to dismiss the case. With no real facts to try, the arguments on the motion to dismiss may be the only "trial". In the meantime, Oklahoma has passed a law to opt out of the mandate. This will appear on the ballot as a constitutional amendment in November 2010. Most legal experts believe States do not have power to opt out of the federal mandate. Obviously, a lot more to come on this!

The author, Elise D. Brennan, may be contacted at ebrennan@dsda.com

Cobra Extension

FURTHER EXTENSION OF COBRA PREMIUM SUBSIDY SIGNED INTO LAW ON APRIL 15, 2010

As reported in our April 2010 e-newsletter, the 65% COBRA premium subsidy eligibility period was extended and then re-extended through March 31, 2010. As further reported in our April 2010 e-newsletter, there was much debate as to whether another extension would be signed, but the measure to further extend never made it to a vote. Consequently, employees terminated after March 31, 2010 would remain eligible for COBRA (as applicable) but not the premium subsidy.

See article here:

Despite Congress' failure to extend the COBRA premium subsidy prior to March 31, 2010, on April 15, 2010, President Obama signed the Continuation Extension Act of 2010 (H.R.4851), available here. The Act extends the COBRA subsidy premium program through May 31, 2010, including the period from April 1, 2010 through the date of enactment. The Act's COBRA subsidy provisions are effective as if originally included in The American Recovery and Reinvestment Act of 2009 ("ARRA"), enacted on February 17, 2009. Below is a summary of the key provisions followed by a summary of possible future COBRA subsidy legislation.

• Extended Expiration Date. The COBRA subsidy program will be available for a loss of group health coverage due to involuntary termination (or a reduction of hours that is followed by an involuntary termination) through May 31, 2010.
• Transition Period. For individuals who experienced a termination of employment on or after April 1, 2010, but before April 16, 2010, the Act requires the plan administrator to notify such individuals by June 15, 2010 of their ARRA rights (including the COBRA subsidy) and to allow them to elect COBRA coverage up to 60 days after they are provided with such notification.

The numerous extensions and new notice requirements have made the administration of COBRA continuation coverage requirements a challenge for employers, plans and administrators and additional extensions are likely. The Jobs for Main Street Act (H.R. 2847), passed by the House last December, would extend the COBRA subsidy program through June 30, 2010. In March, the Senate passed the American Workers, State, and Business Relief Act of 2010 (H.R. 4213), which would extend the COBRA subsidy program through December 31, 2010. According to various reports, it is possible that Congress will pass a longer-term extension before the Memorial Day Congressional recess, but the timing and legislative means for such an extension remains uncertain.

The author, Jeffrey C. Rambach, may be reached at jrambach@dsda.com

What's New

AnnouncementS

CHAMBERS AND PARTNERS USA 2010 HAS ANNOUNCED THAT FOUR DSDA LAWYERS WILL BE FEATURED AS LEADERS IN THEIR FIELD

Elise Brennan - Corporate/Commercial- Healthcare
ebrennan@dsda.com

Jon Brightmire - Labor & Employment
jbrightmire@dsda.com

Kristen Brightmire - Labor & Employment
kbrightmire@dsda.com

David McCullough - Native American Law
mailto:dmccullough@dsda.com

For twenty years, Chambers has published the leading directories of the legal profession. Their reputation is based on the independence and objectivity of their research. This intensive, continuous research identifies and ranks the world's leading lawyers and law firms - those which perform best according to the criteria most valued by clients.

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CIVIL PROCEDURE and ELECTRONICALLY STORED INFORMATION

OKLAHOMA WATER TOWN HALL

Kassandra M. Bentley participated in the Oklahoma water town hall, conducted by the Oklahoma Academy, as part of the Oklahoma Comprehensive Water Plan. The town hall occurred on May 23-26.

EDWARDS NAMED TO ABA POSITION IN ENVIRONMENTAL LAW

Alicia Edwards was named Vice Chair for the Pesticides, Chemical Regulation, and Right-to-Know Committee of the Environment, Energy, and Resources Section of the American Bar Association. As Vice Chair, she has served as editor for her committee's contribution to the Section's "The Year in Review 2009," which was published in April.

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