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Monthly Archives: June 2010

Hospital’s immunity bars recovery for sexual abuse

A hospital which employed a doctor accused of sexually abusing a patient in the late 1960s is protected by the doctrine of charitable immunity, the Massachusetts Court of Appeals ruled in Doe v. Levine.

In 2006, the plaintiff, John Doe No. 4 (Doe), brought a medical malpractice and negligence action against Melvin D. Levine, and his employer, Children’s Hospital Medical Center (hospital). Doe alleged that Levine sexually assaulted him while he was Levine’s patient from 1967 to 1969 and that the hospital was negligent in its hiring, training, and supervision of Levine with respect to Doe. The hospital moved to dismiss Doe’s negligence claim on the ground that the doctrine of charitable immunity, as it existed under the common law at the time the alleged sexual assaults occurred, bars recovery. The hospital argued that the doctrine of charitable immunity, in effect at the time, precluded Doe’s claim.

The trial court denied the hospital’s motion to dismiss, but the Appeals Court overturned the decision, ruling that the discovery of the damages in 2006 is not relevant, but the date of the alleged abuse is. “Doe’s negligence claim arose no later than 1969, which is the year in which he alleges he was last treated by Levine.” Thus, the negligence claim arose no later than 1969, which was when the patient was last treated by the doctor. At that time, the hospital had the benefit of absolute charitable immunity.

In 1969, the common-law doctrine of charitable immunity precluded any tort liability against a charitable organization. However, in 1971, the Legislature abolished absolute charitable immunity and replaced it with limited liability. See G. L. c. 231, § 85K, , which provides that: “It shall not constitute a defense to any cause of action based on tort brought against a corporation . . . that said corporation . . . is or at the time the cause of action arose was a charity; provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation . . . liability in any such cause of action shall not exceed the sum of twenty thousand dollars.”

The decision in this case highlights the inequities that follow the introduction of any type of immunity in the law. Rather than being accountable for egregious conduct, this hospital gets to walk away from its responsibility. How can it be said that the interests of justice are well served by such laws?

What happens in Vegas……hospitals?

Patients in Las Vegas hospitals have unknowingly encountered thousands of cases of injury, death and deadly infection associated with stays in hospitals there. This was revealed as part of a two-year investigation, by Las Vegas Sun reporters Marshall Allen and Alex Richards who obtained a record of every Nevada hospital inpatient visit going back a decade — 2.9 million in all.

The information, coupled with interviews with more than 150 patients and health care insiders, has yielded a sweeping and detailed portrait of hospital care in Las Vegas. Over a two-year period — 2008 and 2009 — patients suffered preventable injuries, life-threatening infections, or other harm 969 times during their stays in Las Vegas hospitals. The investigation also found that Las Vegas hospitals “have higher than expected rates of accidental punctures and lacerations, blood clots, and deadly blood infections. Hospital insiders tell the Sun that a dangerous culture of mediocrity has become the status quo.”

You can read the full report by clicking here. In the meantime, if you are planning a trip to Vegas and need medical assistance, take heed of this running joke about hospitals there:

“Where do you go for great health care in Las Vegas?”

“The airport.”

New bill would aid seniors with Medicare liens

Last July, we wrote about a legal pitfall which hampered recovery for our elderly clients. You can read that post by clicking here. In the piece, we noted that the Medicare Secondary Payor statute (MSPS) presents perils for plaintiffs, defendants, attorneys, and insurance carriers. For many reasons, the Medicare Secondary Payer Act is riddled with inefficiency.

Established in the 1980’s, the act was designed to reimburse the Medicare Trust Fund if another insurance or compensation source is available to pay for health care costs. The intent was to keep Medicare solvent, but the result is that Medicare patients are unable to receive timely information from the Center for Medicare Services (CMS) and as a result, they are not receiving their settlements since insurers and others cannot compensate the Medicare patient until CMS is reimbursed. Their money can be tied up for years due to the inefficiency of the MSP system, and many seniors die waiting for compensation that would improve the quality of their lives.

New legislation pending before Congress may help. HR 4796 would correct many of the problems by requiring the Center for Medicare Services (CMS) to respond to requests for their lien amount within 60 days. Self-funded by a $30 application fee, this bill costs the taxpayers nothing, and it has the broad support of coalitions including the National Retail Federation, the United Chamber of Commerce, and Allstate Insurance. You can read the United Chamber’s letter of support by clicking here.

You can help move this important legislation towards passage by asking your Member of Congress to cosponsor HR 4796. Here is a sample letter you can send:

Seniors are facing an injustice that Congress can correct. The Medicare Secondary Payer System (MSP) established in the 1980’s was designed to reimburse the Medicare Trust Fund if another insurance or compensation source is available to pay for health care costs. For example, if a Medicare patient receives medical treatment for an injury, and that injury is determined to be covered under workers’ compensation, auto or other liability insurance, Medicare is reimbursed for the medical bills they paid on behalf of the Medicare patient for the injury. The intent was to keep Medicare solvent, but the result is that Medicare patients are unable to receive timely information from the Center for Medicare Services (CMS) and as a result, they are not receiving their settlements since insurers and others cannot compensate the Medicare patient until CMS is reimbursed. Their money can be tied up for years due to the inefficiency of the MSP system, and many seniors die waiting for compensation that would improve the quality of their lives.

Adding to this problem is the fact that when CMS finally does respond, it often includes charges that were not specific to the injury and that it cannot be reimbursed for legally! Then CMS prohibits the patient from receiving any Medicare benefits until the erroneous total is paid! This lengthy back and forth draws out the process even longer, leaving seniors facing life with no Medicare coverage. The agency has even been known to garnish seniors’ Social Security benefits over this.

HR 4796, the Medicare Secondary Payer Enhancement Act would correct this problem by requiring CMS to respond to requests for reimbursements within 60 days. Self-funded by a $30 application fee, this bill costs the taxpayers nothing, and it has the broad support of coalitions including the National Retail Federation and Allstate Insurance.

Help seniors. Become a cosponsor of HR 4796 today.