News

27th Annual TBA Health Law Forum Videos Now Online

I am pleased to announce that the videos from the 27th Annual Health Law Forum are now available for view online. The TBA Health Law Section Executive Council worked hard to put together an informative and beneficial CLE program for section members. These videos provide an opportunity to explore various practice areas while also earning CLE credit.  

As a bonus, TBA Health Law Section members receive a section discount for these videos and all other CLE programs sponsored by the TBA Health Law Section throughout the year. 

To register today for one or all of the videos, please click on the links below: 

We look forward to continuing the good work of this section.

Denise Burke
Chair
TBA Health Law Section 

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Application of 'Death with Dignity' Law Circumstantial

The Tennessean examines the application of the state’s Right to Natural Death Act, stating the act was never intended to allow terminally ill patients to ask their physician for medication that would end their life. The act says that Tennesseans can “accept, refuse, withdraw from, or otherwise control decisions relating to the rendering of the person's own medical care, specifically including palliative care and the use of extraordinary procedures and treatment.” Attorney John Jay Hooker, whose death with dignity appeal was denied by the state’s Supreme Court, argues the state’s Constitution already allows residents to choose assisted suicide. "What's the difference between the doctor taking you off the essential ingredients to live and giving you some medicine that will speed up your death?" Hooker said. The Tennessean announced yesterday that Hooker has been named the 2015 Tennessean of the Year in recognition of his work fighting for more than 20 years for the constitutional rights of Tennesseans.

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Employers and Workers Deal with Changing Marijuana Laws

The American Bar Association highlights how employers and employees across the country are dealing with laws permitting marijuana use. Marijuana use is now permitted in 23 states and the District of Columbia, according to Governing magazine. “I think there’s mass confusion,” Chicago attorney Lori Ecker said. “The core problem is that marijuana continues to be a Schedule I drug according to federal drug law. That’s the 800-pound gorilla in the room."

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Healthcare Liability Reporting Requirements

Attorneys reporting health care liability claimants are required to provide specified information related to fee arrangements and TennCare payments to the Department of Commerce and Insurance. Per the Tennessee Health Care Liability Reporting Act, the department must submit an annual report summarizing information submitted by health care providers, facilities and attorneys by March 1. Reporting requirements and instructions can be found on the department’s website

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Federal Medicare Fraud Case Claims Total $1.8B

Attorneys in a federal Medicare case involving Cleveland, Tennessee-based Life Care Centers of America met in Chattanooga Wednesday to argue motions before U.S. District Judge Harry S. Mattice Jr., the Cleveland Daily Banner reports. The federal government claims Life Care created a scheme to maximize the number of days it billed Medicare and Tricare for alleged rehabilitation therapy for patients. The Chattanoogan reports the claims in the case total $1.8 billion. The next hearing is set for early January.

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Overdoses by Prescription Painkillers Increase in Tennessee

The Tennessean reports that deaths from prescription painkillers increased in 2014, despite efforts by state lawmakers over the last year to curb the problem. The new statistics on overdoses by prescription painkillers were released by the U.S. Centers for Disease Control and Prevention.

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Deaf Couple Sues Johnson City Hospital

Chris and Donna Cantrell, a deaf couple from Virginia, are suing Mountain States Health Alliance in Johnson City for allegedly failing to provide a qualified sign language interpreter while their 21-year-old daughter was dying of cancer. The federal suit, filed Wednesday by Disability Rights Tennessee and the National Association of the Deaf, said the hospital provided an unqualified interpreter on fewer than five occasions. "(Donna) Cantrell saw her daughter burst into tears but had no idea why she was crying. Because her daughter was too upset to explain, (she) did not learn that her daughter was dying until much later,” the lawsuit said. Read more from The Times Free Press.

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High Court Questions if States Can Gather Health Data

The Associated Press describes the U.S. Supreme Court as “skeptical” when determining if state officials have the power to require health insurers to turn over information detailing how much they pay for medical claims. The debate landed before the high court after Liberty Mutual Insurance Co. refused to share health data with Vermont officials; state officials argued the database would minimize health costs and increase competition. Vermont joins an estimated 18 states that currently gather health care claims. Liberty Mutual attorney Seth Waxman argues that federal law intended for self-funded insurance plans to operate without state regulations. Attorneys attending the annual TBA Academy and Admissions Ceremony were on hand for the session.

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Court Date Set for Franklin Man Accused of Fraud in Wellness Company

George David George, who is accused of devising a stock scheme and stealing millions of dollars from a Brentwood wellness company, is scheduled to appear in federal court on Jan. 12. The Franklin resident was charged with four felonies and is accused of collecting $2.25 million in investments from WellCity Foundation. "We don't subscribe to the notion that it was a Ponzi scheme," George's attorney Peter Strianse said. "The company provided real services, and was used by a lot of school districts and things like that. We insist it wasn't a facade." Read more from the Franklin Home Page.

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Report: Recovery Courts Yield Better Results

An evaluation of Tennessee’s recovery courts – including drug courts, mental health courts and veterans courts – shows that these settings succeed in putting defendants on the path to a more successful and rewarding future. According to the Chattanoogan, the study found that 81 percent of graduates became employed or saw improvement in their job status, 28 percent of homeless participants found their own place to live, and 14 percent completed a GED or secured an advance degree. 

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Cannabis CLE Courses Available Online

The online CLE sessions on legislation and insight into hemp, cannabis oils and medical marijuana in Tennessee are now available. Speakers include representatives from the Department of Agriculture and the Tennessee General Assembly. Each course is approved for one hour of CLE. 

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Administrative Med Mal Scheme Discussed

The Medical Malpractice Study Committee of the Senate Commerce & Labor Committee met today to consider SB507 by Sen. Jack Johnson (HB546 by Rep. Glen Casada), which moves medical malpractice claims out of the court system into a Patients’ Compensation System, relieves physicians of personal malpractice liability, and sets up an independent medical review panel of physicians and medical experts to review plaintiffs' claims. Presenting the legislation were representatives of the group Patients For Fair Compensation. Those in opposition and raising concerns included the Tennessee Medical Association and State Volunteer Mutual Insurance Company. Legislators attending today’s meeting included Sen. Jack JohnsonSen. Mark GreenSen. Reginald TateRep. Glen CasadaRep. Dennis PowersRep. Joe PittsRep. David Shepard and Rep. Kelly Keisling. Check TBAImpact for updates on this issue.

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Haslam Wants to Strengthen Laws for Abortion Providers

In a letter issued last week to state lawmakers, Gov. Bill Haslam revealed, according to the Knoxville News Sentinel, the Department of Health recently conducted unannounced inspections of the state’s four largest abortion providers to ensure they are in compliance with all laws and regulations. It is against Tennessee law to sell fetal tissues, but there are no laws in place requiring abortion providers to report on the disposal methods. In the letter, Haslam wrote that he intends to “prevent the abhorrent activities discussed in the Planned Parenthood videos from occurring in Tennessee.” The governor also wrote he would be proposing legislation in January "to strengthen accountability and transparency for surgery centers performing abortions."

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New Health Care Consulting Group Based in Nashville

Dickinson Wright PLLC partnered with two health care veterans to launch a new corporate health care venture in Nashville – DW Franklin Consulting Group – to serve health care clients around the country. The group will provide consulting services in governmental relations, turnaround consulting and risk analysis. “In partnering with Dickinson Wright, we bridge legal and regulatory compliance guidance with operational consultancy, which is very timely for today’s market — if not overdue,” Consulting Group leader Kerry Hart said.

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Court Will Hear Another Challenge to ACA Contraceptive Mandate

The Supreme Court accepted challenges from religious nonprofit groups to the Affordable Care Act and its contraception mandate, CNN reports. It will be the fourth time the Supreme Court has heard a challenge to the legislation. In 2014, the high court ruled that for-profit companies could refuse on religious grounds to cover contraceptives in their employee insurance plans.

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Supreme Court Modifies Summary Judgment Standard

The Tennessee Supreme Court returned to a summary judgment standard consistent with the Federal Rules of Civil Procedure in an opinion released today in a Memphis health care liability case. The Court’s ruling in Michelle Rye v. Women's Care Center of Memphis holds that when a party moves for summary judgment, its burden can be satisfied by either negating an essential element of the other party’s claim or by demonstrating that the other party’s evidence at the summary judgment stage is insufficient to establish that party’s claim or defense. Justice Gary R. Wade authored a dissenting opinion, concluding the summary judgment standard applied during the last two decades in Tennessee -- based on the 2008 judgment in Hannan v. Alltel Publishing Co. -- is preferable to the federal standard.

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Group Challenges Health Care Overhaul Origination

An appeal filed today by the Pacific Legal Foundation will present yet another challenge to President Barack Obama’s health care overhaul, the Associated Press reports. The appeal, filed in the U.S. Supreme Court on behalf of a small-business owner, says that the law violates the provision of the Constitution that requires tax-raising bills to originate in the House of Representatives. The foundation said the health care overhaul is expected to generate roughly $500 billion in new taxes by 2019.

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Supreme Court Rules Unanimously in Health Care Liability Act Case

The Tennessee Supreme Court unanimously determined today that the Tennessee Health Care Liability Act applies to all claims relating to the delivery of health care services by covered health care providers. This ruling comes after Nashville parents Adam and Ashley Ellithorpe claimed in 2013 that Janet Weismark, a licensed clinical social worker, treated the couple’s child without their consent. The ruling dismissed the claims because the couple failed to give a pre-suit notice or to provide a certificate of good faith as required by the Act.

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Web Series on Employee Dispute Resolution Plans

A four-part webcast series will begin Nov. 4 at noon for lawyers and mediators regarding employee dispute resolution. Courses include Creating and Managing an Employee Dispute Plan, Dispute Resolution in Health Care Settings, Proposed Collaborative Law Rule for Family Law Mediators and Interaction Between Mediators and Lawyers. The series is worth 4.5 credits of CLE.

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Supreme Court Review Possible in Birth Control Requirement Dispute

The Justice Department says the U.S. Supreme Court should review a federal appeals court decision that agreed with religious-oriented nonprofits' claims that the option to opt of out mandatory birth control provisions unjustly burdens companies. The Associated Press reports that the court in St. Louis last month became the first to agree with the religious-oriented nonprofits after seven other appellate panels sided with the Obama administration.

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Court Adds 13 Cases to October Docket

The U.S. Supreme Court today added 13 new cases to its argument docket for the term that begins Oct. 5. Issues include questions of employee free speech rights, application of U.S. anti-racketeering law overseas, use of Iranian assets in the United States to compensate victims of terrorism and one hunter’s challenge to federal regulations on moose hunting. Justices did not act on a case dealing with abortion clinic regulations and one dealing with contraceptive mandates in the Affordable Care Act.  The National Journal and the Washington Post have wrap up stories of the court's actions.

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Cooper to Lead New Nonprofit Practice Group

Former Tennessee Attorney General Bob Copper will lead Bass, Berry & Sims' new practice group focused on nonprofits, Memphis Daily News reports. “We want clients to know that we can be a one-stop shop for all the unique issues nonprofits face, whether they’re in tax, litigation, regulation – whatever it is,” Cooper said. The practice group, which will primarily focus on health care within nonprofits, will also counsel organizations on corporate governance, employment, compensation and business transactions.

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Death with Dignity Request Denied by Nashville Judge

Nashville Judge Carol McCoy ruled against terminally ill attorney John Jay Hooker's request to take his own life with the assistance of a doctor, WBIR reports. Doctors for Hooker, who is suffering from cancer, sought protection from prosecution to administer him a lethal dosage of painkillers. Hooker said he plans to appeal the ruling. 

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Judge Skahan to Preside over Shelby County Mental Health Court

General Sessions Judge Gerald Skahan will preside over Shelby County’s new mental health court, scheduled to open in January, The Commercial Appeal reports. Skahan’s mission will include preventing repeat incarcerations by providing access to medical care, housing and food. "It's cruel what happens to people suffering from mental health issues," Skahan said. "The Eighth Amendment prohibits cruel and unusual punishments. I think jailing people because they're mentally ill is cruel."

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Jury Selection Could be Difficult in Discrimination Case

A Chattanooga lawsuit filed by Erlanger Hospital’s former interim CEO Charlesetta Woodard-Thompson that includes claims of racial remarks made against Thompson could make upcoming jury selection arduous. The Times Free Press reports that Thompson claimed several high-ranking hospital officials called medicine "a white man's world.” "In this situation, a problem would arise if the defense attorney used peremptory challenges to remove all or most African-Americans as prospective jurors," said Stephen Wasby, an emeritus professor at University at Albany.

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