Anti-SLAPP protects doctor for reporting patient-doctor's opioid use to physician treatment authority

Cindy Shebley CC BY 2.0 via Flickr

A doctor who prescribed opioids for a fellow doctor and ultimately reported the patient-doctor for possible impairment by addiction was protected by anti-SLAPP law when the patient-doctor sued, the Massachusetts Appeals Court held in June.

The two doctors' relationships started when the defendant, a primary care physician, prescribed the plaintiff, an ophthalmologist, Percocet, which contains oxycodone, to manage migraines. In time, the defendant became concerned about the plaintiff's ongoing use of opioids. After unsatisfactory back-and-forth with the plaintiff, the defendant reported his concerns to Physician Health Services (PHS), a nonprofit corporation created by the Massachusetts Medical Society, which in turn is a creation of the legislature. The plaintiff ultimately accepted addiction counseling upon PHS recommendation.

The plaintiff sued the defendant for negligence, tortious interference, civil rights violation, and invasion of privacy. The defendant invoked the Massachusetts anti-SLAPP law, and the court dismissed. The Appeals Court affirmed.

I'm on record as an anti-SLAPP skeptic, while acknowledging that anti-SLAPP laws sometimes facilitate a sound outcome. To my satisfaction, the Massachusetts law is narrow in some key regards, including the requirement that a defendant's conduct must be substantially related to a petitioning to governmental officials. In June 2021, I wrote about the failure of an anti-SLAPP defense when the Appeals Court opined that defendants' alleged extortive expression was not sufficiently closely related to the zoning disposition with which the defendant was alleged to have sought to interfere.

In the instant case, the Appeals Court had little trouble determining that the defendant's reports to PHS were substantially related to government petitioning. Physician peer reporting is required by law upon reasonable belief in a violation of regulation. And it was understood, the court reasoned, that reporting to PHS, which specializes in treatment for drug and alcohol impairment, was an intermediate step that would result in reporting to the state licensing authority if the matter could not be resolved.

"It follows, therefore, that the defendant's communication to PHS regarding his concern about the plaintiff is protected," the court wrote, "unless the plaintiff can show either that the defendant failed to act in good faith or that he had no reasonable belief that the communication furthered the purpose of PHS."

The case is Berk v. Kronlund, No. 22-P-4 (Mass. App. Ct. June 14, 2023) (FindLaw). Justice Kenneth V. Desmond Jr. wrote the opinion of the unanimous panel that also comprised Justices Wolohojian and Blake.

No right to physician aid in dying, Mass. high court holds, rejecting analogy to same-sex marriage right

In 2017, Rep. Eleanor Holmes Norton (D-D.C.) and D.C. residents
protest to protect "death with dignity" law from congressional meddling.
Ted Eytan, MD, via Flickr CC BY-SA 2.0

There is no right to physician aid in dying in the Massachusetts constitution, the commonwealth high court held in December, leaving room for legislators to fill the gap.

A cancer patient and a doctor brought the case. The plaintiff patient, a retired physician with metastatic prostate cancer, wanted counseling on physician aid in dying; the plaintiff doctor wanted to give counsel to his patients struggling with potentially terminal illness. Both plaintiffs argued that they could not get what they want for fear that doctors can be prosecuted for the state common law crime of manslaughter, that is, reckless killing, or worse.

The court opinion refers consistently to "physician-assisted suicide" (PAS), but I'm here using the term "physician aid in dying" (PAD), a difference I'll explain. The medical action at issue here is the ability to "prescri[be] ... barbiturates [with] instructions on the manner in which to administer the medication in a way that will cause death." But the plaintiffs confined their demand to patients facing fatality within six months. 

In a footnote, the court said it used "PAS" because the American Medical Association (AMA) prefers the term. The AMA regards "PAD," or the more modish "medical aid in dying" (MAID), preferred by the plaintiffs, as unfavorably "ambiguous."

Massachusetts remains with majority of states in not recognizing PAD right.
Terrorist96 (upd. Apr. 2021) via Wikimedia Commons CC BY-SA 4.0

Facially, both terms are potentially ambiguous; the quibble over semantic precision faintly masks the policy disagreement. "PAS" implicates suicide in the conventional sense, comprising the intentional ending of one's life for any reason, including the expression of mental illness. That's a bigger ask in terms of constitutional entitlement. The 10 states (plus D.C.) that allow PAD, such as Oregon, require a terminal diagnosis and purport to exclude conventional suicide. "PAD" and "MAID," accordingly, mean to narrow the fact pattern to a patient who is hastening a process of natural death that already is under way, or at best ending an inescapable and intolerable suffering.

I learned about this distinction, and more in this area, only recently, as a student in my Comparative Law class is working on a research paper comparing MAID laws in Oregon and the Netherlands. In her early stage of topic selection, I referred her to, and recommend to everyone, my top This American Life segment of 2022, "Exit Strategy." The heartbreaking segment comprises excerpts of Connecticut writer Amy Bloom reading from her book, In Love: A Memoir of Love and Loss, which documented the figurative and literal journey of her and her husband to end his life in Switzerland after his diagnosis with Alzheimer's. I might one day read the whole book, but I'll need to work up the emotional strength.

The court's thorough opinion by Justice Frank M. Gaziano largely tracked the reasoning of the U.S. Supreme Court in declining to recognize PAD as a fundamental right, because it's supported neither by historical tradition nor widespread acceptance. Insofar as PAD is a reality on the ground for doctors and terminally ill patients, it still carries a stigma, the Massachusetts opinion observed. The medical community itself is divided over PAD, evidenced by amici in the case. In the absence of a fundamental right, state criminal law easily survives rational-basis review for substantive due process.

The Supreme Judicial Court recognized its own power and responsibility, in contrast with the more conservative U.S. Supreme Court, to tend and grow the scope of fundamental rights protected in Massachusetts, adapting the state Declaration of Rights to new social challenges. The Massachusetts court exercised that very power when it approved same-sex marriage in the commonwealth in Goodridge v. Department of Public Health (2003), 12 years before the U.S. Supreme Court did likewise for the nation in Obergefell v. Hodges (2015).

Voters reject the PAD initiative in Massachusetts in 2012.
Emw & Sswonk via Wikimedia Commons CC BY-SA 3.0

But the milieu in Massachusetts is hardly conducive to Goodridge delivering this plaintiff ball across the goal line, the court concluded. To the contrary, the court observed, Massachusetts voters rejected a PAD ("Death with Dignity") ballot initiative in 2012 (51% to 49% in "ferocious political battle"), "over a dozen bills" to legalize PAD have failed in the legislature, and statutes regulating healthcare affirmatively disallow PAD counseling.

The court opinion includes an intriguing discussion of standing. The case was something of a put-on, because local prosecutors did not threaten the plaintiff physician with prosecution. Again, the court acknowledged that doctors engage in PAD now, if quietly, criminal law notwithstanding. In reality, there is not a bright line between PAD and appropriate palliative care, or between "terminal sedation" and "palliative sedation." Prosecutors helped plaintiffs to sustain the case by saying that they would not decline to prosecute.

In the end, the court decided the case only in the matter of the physician. The court rejected the plaintiff patient's claim because he had not been given a six-month prognosis, and his cancer remained susceptible to treatment by multiple options. In the patient's defense, I'm not sure someone with a six-month prognosis would have time to prosecute the case to the high court, nor should be expected to. Justice Dalila Argaez Wendlandt aptly dissented on the point. The patient here submitted that he did not necessarily want PAD, but wanted to have the option to be counseled for it if the need arises. Anyway, the court allowed standing for the doctor on a theory of jus tertii ("third-party right"), when one person is allowed to assert the rights of another upon a close nexus of interests. This notion is implicated on the issue of standing in the mifepristone case now before the U.S. Supreme Court.

In separate opinions, Justices Wendlandt and Elspeth B. Cypher left the door ajar to a rights argument on the right facts. Justice Cypher wrote that some "constitutional zone of liberty and bodily autonomy" should preclude prosecution for "late-stage palliative care." Justice Wendlandt reasoned similarly that as a patient approaches death, the state interest in preserving life by way of criminal law wanes, eventually even as to fail rational-basis review of a "nonfundamental right."

Nothing about the court's opinion precludes the state legislature from reengaging with PAD, which has been legalized in the northeast in New Jersey, Maine, and Massachusetts neighbor Vermont.

The case is Kligler v. Attorney General, No. SJC-13194 (Mass. Dec. 19, 2022), available from the Alliance Defending Freedom, a conservative religious freedom advocacy group that participated as amicus on the side of the Attorney General.

We're losing the war on heart disease

Last week, my wife's life was at risk because we did not understand that women in heart distress do not necessarily experience the symptoms one might expect; indeed, they might have no chest pain at all.

My wife, a law librarian at Roger Williams University, is now home from Rhode Island Hospital (RIH) after a scary and unpleasant five nights. She will be OK.

But two weeks ago, she was misdiagnosed by her primary care provider. We too thought she was suffering only a stomach inflammation. In fact, she was experiencing a cardiac event.

Pixabay CC0

A week later, when primary care failed to yield an explanation and the pain became intolerable, we went to the ER.

My hat's off to the staff at RIH. In the ER, they respectfully heard out our recitation of symptoms and amateur self-diagnoses, erroneous as it turned out, and nonetheless rapidly and tenaciously checked out the heart. In the blood work, they discovered enzymes indicative of heart-muscle damage at 500 times normal levels. Our primary care provider had not tested for that.

You're going to hear a lot about women's heart health in the coming weeks, because February 3 is National Wear Red Day, a project of the American Heart Association (AHA) that kicks off American Heart Month. But I've known about Wear Read Day, and I've even worn red. I've known that symptoms of women's heart trouble are elusive. Still, I did not recognize the cause of my wife's distress. So this message can't be delivered early or often enough.

The day my wife came home, the January/February AARP Bulletin landed on our doorstep with the cover story, "America's War Against Heart Disease." A subhead reads, "75 years after it started, we’re losing the battle against our number 1 killer."

This isn't just news for seniors. Sari Harrar reported, "Death rates from heart disease rose 8.5 percent for adults ages 45 to 64 between 2010 and 2020." My wife is under 50.

The AHA says that women with any of these symptoms should "call 911 and get to a hospital right away":

1. Uncomfortable pressure, squeezing, fullness or pain in the center of your chest. It lasts more than a few minutes, or goes away and comes back.
2. Pain or discomfort in one or both arms, the back, neck, jaw or stomach.
3. Shortness of breath with or without chest discomfort.
4. Other signs such as breaking out in a cold sweat, nausea or lightheadedness.
5. As with men, women’s most common heart attack symptom is chest pain or discomfort. But women may experience other symptoms that are typically less associated with heart attack, such as shortness of breath, nausea/vomiting and back or jaw pain.

Our home pharmacy since my wife came home.
RJ Peltz-Steele CC BY-NC-SA 4.0

Harrar reported particularly on the risk-compounding factor of gender.

For decades, women were underrepresented in clinical trials and their heart attack symptoms dismissed in emergency rooms as stomach pain or even emotional problems. The [AHA] published its first treatment guidelines for women in 1999, but it's taken longer for science to discover that the anatomy and electrical pathways of the female heart are unique, which may help explain why a woman's heart attack symptoms can be different from a man's.

Yet women's heart health is still understudied, according to a 2022 review of research in the journal Circulation Research, and women's heart attack warning signs are too often overlooked....

... [H]ealth professionals seem to have the same difficulty identifying heart disease in women: The same study found that when women suffering heart attacks arrive at an emergency room, they experience longer wait times ....  Another study found that women tend to wait longer before calling 911 when they're having a heart attack—up to 37 minutes longer.

This is not so simple as a problem of bias in perspective. All of my wife's doctors in primary care and at RIH were women. But the primary care providers failed to check out the heart, and the ER doc picked up on the possibility immediately.

Farrar's reporting showed that socioeconomics, race, and ethnicity further compound the problem of under-diagnosed or misdiagnosed heart disease. There might be real genetic differences based in race, but they cannot explain a 21% higher mortality rate for African-American adults over white adults, nor the increase in that gap over time, and a higher incidence of heart disease in Hispanic women and men over white women and men.

There are many viable explanations for disparities in outcome by race and ethnicity, importantly including consequences of wealth disparity, such as access to healthy food. But costs and fear of costs no doubt lead the pack of problems.

My family is fortunate to have access to healthcare. Insurance is available to us through both of our employers, which pay a portion of the premiums. Co-pays and deductibles for us are expensive, but manageable. 

The Rhode Island Hospital complex.
Kenneth C. Zirkel via Wikimedia Commons CC BY-SA 4.0

We don't yet have explanations of benefits for this bout of healthcare. But for an anecdotal point of comparison, a two-night hospitalization last year, with no surgical procedures, billed about $13,000 to our insurance. We were responsible for about $1,500. That's not going to stop us from going to the ER, but it will cause many people to pause. And lower-premium plans available through the Affordable Care Act can have much higher deductibles than ours.

A New York Times investigation featured on The Daily podcast this week opened with the story of a woman who stalled her emergency care for fear of costs. After at last seeking help and being hospitalized, she was responsible for a $1,900 tab. But that was too much for her fixed income. She struggled to meet even the demand of a payment plan while still buying food.

Alas, the Daily story was not even about costs. Rather, the investigation revealed that that patient's experience represented a prevalent norm at "nonprofit" hospitals that, by law, are not supposed to charge anything to people who can't afford it.

Some numbers about the Washington hospital highlighted in that story: Annual revenue: $27 billion. Tax break for "nonprofit" status: $1 billion. CEO's annual salary: $10 million.

The patient in the story was given a payment plan, but never an option not to pay. She prioritized the payments over her groceries because she felt indebted to the hospital for having saved her life. She imagined her money going to the staff who took care of her.

We are fortunate also because we live in the small state of Rhode Island and are only a short drive away from hospitals in Providence. Rural healthcare in America is another matter. In the Louisiana town where my wife grew up, and we still have family, the closest hospital is 70 miles away, and it's no tribute to cutting-edge technology.

On The Takeaway from WNYC this week, Harold Miller, president of the Center for Healthcare Quality and Payment Reform, explained why more than 600, or nearly 30% of rural hospitals nationwide are at risk of closing, and 141 have closed since 2010.

A federal aid package to save rural healthcare might be well intentioned but is misguided, Miller said, because to be eligible, a hospital must shut down its inpatient services. But there are no resources to transport patients to larger urban hospitals hours away. The urban hospitals don't have the capacity for that influx anyway. The resulting healthcare system we are now creating would have failed catastrophically had it been in place during the pandemic, when inpatient capacity was stretched to the limit. And that's to say nothing of separating patients from their families by long distances.

It's critical that every person, man and woman, be enlisted in the war on heart disease. Everyone especially should be on guard for the risk to women that might not be easily identified by symptoms. We're going to have to rely on ourselves and one another all the more with a healthcare system that is inconsistently resourced and increasingly ill equipped for the fight.

Lawyers be a-ballin'?

Canadian lawyers protest legal aid de-funding in 2014
(Sally T. Buck via Flickr CC BY-NC-ND 2.0).
My wife was a legal services attorney after law school.
Her salary could not have paid both law school debt
and even a modest mortgage.

A student loan specialist giving advice on The Takeaway this morning said, "Don't live like a lawyer when you're a student, and you won't live like a student when you're a lawyer."

Betsy Mayotte, founder and president of The Institute of Student Loan Advisors, was repeating an aphorism, she said, as a caution against students borrowing more than they need for higher education. Don't count on any program for loan forgiveness, she warned; rather, assume that you'll have to pay back every dime.*

That's sound, conservative economic advice, especially for an America stretched thin on credit card debt and short on long-term savings. But for anything, I could not work out how the aphorism embodied the message.

What does it mean to "live like a lawyer"?

Mayotte had just cautioned students that they should take the time, however boring the task sounds, to read the whole of their promissory notes. The notes well explain what borrowers are in for, she advised, and "no one told me that" will not later be an excuse to default on debt.

Also good advice. But doesn't living like a lawyer mean being supremely attentive to the fine print and acting conservatively in anticipation of adverse circumstances?

In her informative and insightful book, How to Be Sort of Happy in Law School, Professor Kathryne M. Young related research that successful lawyers are more often natural pessimists, marking a contrast with the successful optimists who have the lead in the other professions, clergy and medicine. That's because a lawyer's job is to prepare for the worst, while clergy and doctors are busy instead coaxing their clients toward a joyful salvation of one kind or another.

Did the aphorism mean to be an optimist when a student, so you don't have to be a student when you're a pessimist?  What does that even mean?

You, dear reader, are no doubt quicker on the draw than I, so you've probably worked it out. It dawned on me an hour or so later:

Don't live like a baller when you're poor, or you'll be poor when you're supposed to be ballin'.

The problem is that "lawyer" doesn't mean rich to me. 

I'm a lawyer. Not rich. My wife's a lawyer. Also not rich. I checked.

The vast majority of my former students work in public service jobs, if they're in JD-required positions at all. And even the few in private practice: not rich. Okay, I can think of one. But I think he was rich already.

Don't get me wrong. We're not struggling. Two JDs put our household income in the 90-something percentiles, according to the DQYDJ calculator, with me in the 90s as an individual and my wife, who has a master's degree, as well as her law degree, in the 70s. 

But income is only one measure of wealth, and, I daresay, not the most important. We both went into serious debt to get those JDs. Our home is mortgaged. We had not paid off our graduate education by the time our only child went to university. And we could not afford to get her through four years without her going into debt, too. 

Neither of us started off loaded. We still buy our clothes at Goodwill and Savers. Habits die hard. I just threw away my wife's socks with holes in them while she was out of the house. She won't do it. But I think she deserves better.

When I left law practice in 1996, I was making $50k, which is about $95k adjusted for inflation. I left that for my first job in academics, where I made $35k—$15k less than the IT guy. "Supply and demand," the dean said.

Now I make more. But after advancing in academics for 25 years, I still make less than the average lawyer in the mid-Atlantic, where I practiced, and just a little more than the nationwide average starting salary for a first-year associate.

The takeaway is that I don't associate being a lawyer with being rich. And it's alarming if people are going to law school with that expectation, or if that's how the public sees lawyers. "Kill all the lawyers" was the suggestion of a butcher.

I just finished some physical therapy for an injured shoulder. The bill for that, to my insurer, was $355 per hour. I saw a podiatry specialist recently. That was billed at $122 for what I think was scheduled as a 15-minute appointment, though it took less than 10.  We'll call it $488 per hour.  I like both those providers, but neither is a superstar gracing the cover of Physicians Weekly.

A very gross number, but the average U.S. lawyer's billable hour now runs about $300. The lawyer has more investment in education than the physical therapist, if a bit less than the doctor. The lawyer is a bargain. Clergy is a better bargain, but that's their thing.

Why isn't the saying, "Don't live like a doctor when you're a student, and you won't live like a student when you're a doctor"?

Well, of course, not everyone in healthcare is rich, either.  My wife had an ER visit and hospital stay, no procedures, last summer that was billed at about $13,000 for two days. At the same time, one of my nieces and one of my brothers work as nurses in hospitals; neither of them is making bank. Where's the money going?

I don't know what the right graduate school investment is to get rich. I didn't make it. Maybe whatever gets you to be a healthcare CEO. Be the owner of the hospital, not a provider in it.

Law and medicine can open the door to opportunity, to improve your lot if you're not living comfortably. I'm not knocking that. But no one should go into educational debt without a plan at least to do better than status quo. And plans should be based on realistic expectations.

The aphorism doesn't fit. Worse, it's dangerously misleading. We've got a problem in America with access to education and upward socioeconomic mobility. Simplifying the narrative to suggest that a professional degree will necessarily afford return on investment is not part of the solution.

* I've been reading about the challenges against the Biden student loan forgiveness order. You can follow the legal story at Reason. I'd love to see the plan go through; my daughter would benefit. I'm sorry to say, though, I think the challengers are right: the President exceeded his authority. The unfortunate political outcome, I predict, is that the Administration will be blamed for breaking a promise, and the Supreme Court will be blamed for enforcing the law, both thereby suffering unwarranted further damage to already embattled credibility. Meanwhile, Congress, which in fact held the key to untie the President's hands, but can't ween itself off addiction to money, and especially Democrats, who passed on a real opportunity to make a difference for access to education and socioeconomic opportunity, will escape accountability.

With regard to the title of this post, you can read more about the circumfix a-/-ing at Wiktionary. Read more about "the habitual be" at Slate.

I've been away from the blog for a while owing to an exhausting, if variably rewarding and challenging December and January. I'm back in the saddle now and look forward to catching up on some matters I'm eager to share. Thank you for your patience, and stay tuned!

Hospital BAC disclosure prompts tort privacy claims

Photo by Marco Verch (CC BY 2.0)

The federal district court in Montana in December refused to dismiss an informational privacy claim against police, highlighting the space for state law to effect personal privacy protection in the United States.

Plaintiff Harrington was hospitalized after police found her unresponsive in her parked car. In the complaint, she alleged that sheriff's deputies "joked about her incapacitated condition and played along when nurses asked them to guess her blood alcohol content" (BAC). A nurse thereby disclosed Harrington's BAC, and, the complaint alleged, deputies then coaxed the record from a doctor. Harrington was charged with driving under the influence.

Subsequently, Harrington sued county officials and Madison Valley Hospital, the latter on theories of state statutory information privacy and common law invasion of privacy, negligence, and negligent infliction of emotional distress. The hospital sought dismissal on grounds that the federal Health Insurance Portability and Accountability Act (HIPAA), cited by the plaintiff in the complaint, affords no private right of action.  The federal district court, per Chief Judge Brian Morris, denied the motion to dismiss, recognizing that while HIPAA does not itself authorize private enforcement, it also does not preclude state law from providing greater privacy protection.

The case caught my attention because its facts point to something for which I've advocated, the use of tort law to fill gaps in informational privacy protection in the United States.  The law has not kept up with Americans' expectations of privacy, much less the norms of the world, but the common law should be sufficiently dynamic to reflect the evolving social contract.  I see drift in this direction in the expansion of medical fiduciary duty in emerging precedents in the states, such as Connecticut's Byrne v. Avery Center for Obstetrics & Gynecology, P.C., in 2018.

A theory as tenuous as negligent infliction of emotional distress, "NIED," can't usually stand on its own.  And tortious invasion of privacy has a poor track record in protecting personal information that is already in limited circulation.  However, paired with a medical provider's fiduciary duty and bolstered by a privacy violation recognized in regulation, either tort theory might be ripe for redefinition.

The case is Harrington v. Madison County, No. 2:21-cv-00015 (D. Mont. Dec. 6, 2021).  Hat tip to Linn Foster Freedman at Robinson+Cole's Data Privacy + Cybersecurity Insider.

Horrors at Oak Ridge Psychiatric amounted to assault, battery, but lacked intent for IIED, Ontario court rules

From 1963 to 1988, patients involuntarily committed to the maximum-security Oak Ridge Mental Health Centre at Penetanguishene, Ontario, were subject to barbaric experimentation.  (From CBC (2016), above.) Treatments included LSD, other mind-altering drugs, and corporeal maltreatment, such as "the Capsule":

a soundproof, windowless, and constantly lit 8’ x 10’ room, with no furniture and an exposed toilet, where groups of patients, had their interactions monitored through closed-circuit television and a one-way mirror by patient observers outside....

Patients ... were frequently restrained or strapped to each other, and were most often injected with DDT drugs to lower their inhibitions. They were often paired so that patients diagnosed with schizophrenia experiencing a chaotic range of emotions where placed together with patients with antisocial personality disorders....

So egregious were the methods employed at Oak Ridge that 28 former patients now suing the Crown could have made out a fair case for medical negligence.  But the Ontario court was willing to find intentional torts, assault and battery, instead.  Notwithstanding lawful involuntary commitment and seeming express consent to treatment procured from patients, the extreme nature of the medical experimentation rendered the patients' informed consent impossible, the Ontario Superior Court ruled in June.

At the same time, the patients could not prove intentional infliction of emotional distress, for want of "double-duty intent" (my words); that is, although medical staff inflicted emotional distress intentionally in the short term, and notwithstanding the lasting psychological trauma that resulted, the defendants, however misguided, acted with the greater goal, or intent, of making the patients well.

Hat tip to Private Law Theory, which reported an examination of the case against an historical analysis of battery in Canadian common law by Omar Ha-Redeye, executive director of the Durham Community Legal Clinic in Oshawa, Ontario.

The case is Barker v. Barker, 2020 ONSC 3746 (CanLII) (Ont. Super. Ct. June 25, 2020) (Canada).

Watch and read more about Oak Ridge with Canadian Broadcasting (2016) (above) and in other sources.

Doctor's blog briefs COVID-19, medmal, learned intermediary doctrine, and addiction in legal profession

Like you, likely, I am at home.  And one thing I can tell you about home:  This ain't Rwanda.  Where I was supposed to be.  Apologies in advance to students for the classes I will have to reschedule in upcoming semesters to make up some of my sabbatical research.  Or maybe the university will afford me some bonus away time, compassionately understanding the impact of the crisis.  ROTFL.

So here I sit with some time to catch up on reading, and I want to share some worthwhile items here on the blog.

For starters, I'm terribly excited about what my friend and former student Joseph Grillo, M.D., J.D.-nearly-complete, has been writing over at his eponymous blog.  Here are recent headlines, links, and snippets in reverse chronological order.  Did I mention that Dr. Joe (LinkedIn) is an infectious disease specialist?

You have a look-see, below, while I go refresh my Whole Foods delivery window window.

Or not.

---

Image by Prawny from Pixabay

Coronavirus Disease 2019 (COVID-19) – The Available Evidence
March 19, 2020

There is currently a large amount of information being circulated on the COVID-19 viral pandemic. Much of it is inaccurate and some is hysteria – often fostered by the mainstream media. In my view, the best way to combat this virus is by having evidence-based information and acting accordingly. There is a significant amount of accurate information currently known, but there is also considerable information that remains unknown at this time. Presented below is a discussion of both. Please feel free to contact me with questions at jfgrillo1@gmail.com.  Read more.

Image by Gordon Johnson from Pixabay

The Effects of the Affordable Care Act on Medical Malpractice Claims
March 17, 2020

The seemingly interminable debates about the ACA and health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost. The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement. There is a complicated and nonlinear relationship between medical malpractice events, medical malpractice claims, and medical malpractice costs. [Footnotes omitted.]  Read more.

Image by Gordon Johnson from Pixabay

Editorial: The Edges of Physician Liability and The Learned Intermediary Doctrine
March 12, 2020

The Learned Intermediary doctrine paints an idyllic picture of patients’ total reliance on their physicians to choose drugs and of physicians choosing drugs that best promote patient welfare. These images, however, are increasingly out of sync with the present-day healthcare system. For instance, managed care and other cost control measures employed by insurance companies have altered the doctor-patient relationship.  Read more.

Image by congerdesign from Pixabay

Suffering in Silence – The Addiction Epidemic in The Legal Profession
March 10, 2020

A recent course required an oral presentation on a topic of our choosing. Unknowingly, I chose to research and present my findings on addiction in the legal profession. What I found is worth expounding. Also worth noting is that these findings were presented to the university administration. Their response was chilling. In short, they claimed to “have this.” I am certain of a few things – they don’t “have this,” that being stagnant is at the heart of the crisis, and the status quo continues – drugs continue to be sold and consumed, and law students are suffering in silence. Therein lies a microcosm of a crisis within the legal profession.  Read more.

Image by Alina Kuptsova from Pixabay

Urgent Care – an Emerging Source of Clients for Medical Malpractice Attorneys
March 4, 2020

Urgent care centers are increasingly becoming Americans’ go-to option for certain health problems according to a study in JAMA Intern Med. 2018. Visits to urgent care clinics increased by 119% among commercially insured Americans between 2008 and 2015. During the same time period, emergency room visits for low-severity conditions — like those treated at urgent care centers — decreased by 36%. The reasons for these trends are numerous, including the high costs and long wait times associated with ER visits. While there are certainly benefits to such clinics, there are potential pitfalls for patients.  Read more.

Law student, doctor's blog explores medmal issues

An alum of my Torts I & II classes and a medical doctor, Joseph Grillo is doing some intriguing blogging at his Medical-Legal Consulting website.  Here's a teaser to a recent (May 31) item: 

Vicarious Liability Doctrines in Medical Malpractice: Ostensible or Apparent Agency

It is commonplace today that hospitals do not employ physicians. Instead the physician is considered an independent contractor. This relationship may muddy the waters when trying to hold a hospital to account under vicarious liability.

There exists an exception to the general rule that a hospital incurs no liability for the negligence of independent contractors but only for those who provide care within the traditional employment relationship.

The doctrine of ostensible agency or apparent authority has been the predominant theory upon which to base an action for vicarious liability against a hospital for the negligence of independent contractors.