Articles Posted in Health Law

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Plaintiff-petitioner Charissa Schultz was injured in a 2015 car accident in which the other driver failed to stop at a stop sign. The other driver’s insurance company settled for its $25,000 policy limit, and Schultz made a demand on her own uninsured/underinsured motorist benefits under her GEICO policy, which also had a $25,000 limit. In April 2017, after months of correspondence and apparent review of an MRI performed on Schultz in April 2015, GEICO offered Schultz its full policy limit, and it did so without requesting that she undergo an independent medical examination (“IME”). Indeed, GEICO’s claim logs reveal that at the time GEICO decided to offer Schultz its policy limits, it “concede[d] peer review wouldn’t be necessary,” indicating an affirmative decision not to request an IME. A few months later, Schultz filed the present lawsuit asserting claims for bad faith breach of an insurance contract and unreasonable delay in the payment of covered benefits. GEICO denied liability, disputing the extent and cause of Schultz’s claimed injuries and asserting that causation surrounding the knee replacement surgeries was “fairly debatable” because Schultz had preexisting arthritis, which GEICO claimed may independently have necessitated her surgeries. To establish its defense, GEICO ordered the IME and the district court granted that request. The Colorado Supreme Court concluded GEICO’s conduct had to be evaluated based on the evidence before it when it made its coverage decision and that, therefore, GEICO was not entitled to create new evidence in order to try to support its earlier coverage decision. The Court also concluded the district court abused its discretion when it ordered Schultz to undergo an IME over three years after the original accident that precipitated this case and a year and a half after GEICO had made the coverage decision at issue. View "Schultz v. GEICO Casualty Company" on Justia Law

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When Charlotte Fischer moved into a nursing home, she received an admissions packet full of forms. Among them was an agreement that compelled arbitration of certain legal disputes. The Health Care Availability Act (“HCAA” or “Act”) required such agreements contain a four-paragraph notice in a certain font size and in bold-faced type. Charlotte’s agreement included the required language in a statutorily permissible font size, but it was not printed in bold. Charlotte’s daughter signed the agreement on Charlotte’s behalf. After Charlotte died, her family initiated a wrongful death action against the health care facility in court. Citing the agreement, the health care facility moved to compel arbitration out of court. The trial court denied the motion, and the court of appeals affirmed, determining the arbitration agreement was void because it did not strictly comply with the HCAA. At issue was whether the Act required strict or substantial compliance. The Colorado Supreme Court held "substantial:" the agreement at issue her substantially complied with the formatting requirements of the law, notwithstanding the lack of bold type. View "Colorow Health Care, LLC v. Fischer" on Justia Law

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Defendants sought ex parte interviews with a number of non-party medical providers in this medical malpractice action. Because of this, an issue arose regarding the scope of the physician–patient privilege in medical-malpractice actions. Section 13-90-107(1)(d), C.R.S. (2017), prohibited certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, was not unlimited. The dispute, as presented to the Colorado Supreme Court, did not implicate the physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants, meaning section 107(1)(d)(I) was inapplicable. Instead, the issue here was whether the non-party medical providers were “in consultation with” Defendants such that section 107(1)(d)(II) removed that typically privileged information from the protection of the physician–patient privilege. The Supreme Court held the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, the Court remanded this case to the trial court for consideration of whether the Baileys impliedly waived the physician–patient privilege for the non-party medical providers. On remand, if the trial court concluded that the Baileys did waive that privilege, it should reconsider whether there is any risk that: (1) ex parte interviews with the non-party medical providers would inadvertently reveal residually privileged information; or (2) Defendants would exert undue influence on the non-party medical providers in the course of any ex parte interviews. View "In re Bailey v. Hermacinski" on Justia Law

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When Arvada, Colorado police officers responded to a reported domestic disturbance in Terry Ross’s home, Ross went into a bedroom and shot himself. Officers radioed for an ambulance whose crew delivered him to the hospital. There, doctors treated Ross’s wounds as Arvada officers kept watch over him. When Ross, and later his estate, could not pay for his care, the hospital billed the City of Arvada nearly $30,000. The question presented by this case was essentially whether Arvada had to pay the tab. The trial court and court of appeals said yes; both read Colorado’s “Treatment while in custody” statute as entitling the hospital to relief. Relying on Poudre Valley Health Care Inc. v. City of Loveland, 85 P.3d 558 (Colo. App. 2003), the trial court decided the statute assigned police departments (or any agency that detains people) a duty to pay healthcare providers for treatment of those in custody. The court of appeals affirmed on essentially the same grounds. The Colorado Supreme Court, however, concluded the statute did not create any duty to a healthcare provider. Furthermore, the Court concluded that the hospital’s claim for unjust enrichment survived. Because that claim was contractual, the Court concluded the Colorado Governmental Immunity Act did not prohibit it. Therefore, the Court reversed the judgment of the court of appeals in part and remanded for further proceedings. View "City of Arvada ex rel. Arvada Police Department v. Denver Health" on Justia Law

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In March 2016, Catholic Health Initiatives Colorado (d/b/a Centural Health – St. Anthony North Hospital) filed suit against architectural firm Earl Swensson Associates (“ESA”) after ESA designed Catholic Health’s new hospital, Saint Anthony North Health Campus (“Saint Anthony”). Catholic Health alleged that ESA breached its contract and was professionally negligent by failing to design Saint Anthony such that it could have a separately licensed and certified Ambulatory Surgery Center (“ASC”). In December 2016, Catholic Health filed its first expert disclosures, endorsing Bruce LePage and two others. Catholic Health described LePage as an expert with extensive experience in all aspects of preconstruction services such as cost modeling, systems studies, constructability, cost studies, subcontractor solicitation, detailed planning, client relations, and communications in hospital and other large construction projects. Catholic Health endorsed LePage to testify about the cost of adding an ASC to Saint Anthony. At a hearing, ESA argued that the lack of detail in LePage’s report prevented ESA from being able to effectively cross-examine him. ESA further argued that striking LePage as an expert was the proper remedy because Rule 26(a)(2)(B)(I) limits expert testimony to opinions that comply with the Rule, and LePage offered no opinions in compliance. In 2015, the Colorado Supreme Court amended Colorado Rule of Civil Procedure 26(a)(2)(B) to provide that expert testimony “shall be limited to matters disclosed in detail in the [expert] report.” In this case, the trial court concluded that this amendment mandated the exclusion of expert testimony as a sanction when the underlying report fails to meet the requirements of Rule 26. The Supreme Court concluded the amendment created no such rule of automatic exclusion. Instead, the Court held that the harm and proportionality analysis under Colorado Rule of Civil Procedure 37(c) remained the proper framework for determining sanctions for discovery violations. Because the trial court here did not apply Rule 37(c), the Court remanded for further development of the record. View "Catholic Health v. Swensson" on Justia Law

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In 2010, the Colorado Governor, under guidance from the state's medical and nursing boards, decided that Colorado would opt-out of a federal regulation requiring certified registered nurse anesthetists (CRNAs) administer anesthesia under a physician's supervision. Under the regulation, hospitals, ambulatory surgical centers and critical access hospitals received Medicare reimbursement if CRNAs worked under a physician's supervision. Petitioners the Colorado Medical Society and the Colorado Society of Anesthesiologists, filed suit against the Governor, claiming that Colorado law did not permit CRNAs to administer anesthesia without supervision. In ruling on the Governor's motion to dismiss, the trial court found that petitioners failed to state a valid claim and granted relief. The appellate court agreed with the trial court's conclusion. The Supreme Court agreed with the result, but held that the Governor's decision to opt-out of the federal regulation was revieweable by a court only for a gross abuse of discretion. Because petitioners did not allege that such a gross abuse occurred here, the court of appeals' decision to affirm dismissal of the case was affirmed. View "Colorado Medical Society v. Hickenlooper" on Justia Law

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Commercial Research, LLC (“Creditor”) obtained an assignment of a default judgment that had been entered against Gary S. Roup in a Texas court. Creditor then filed the judgment in Colorado and began collection proceedings against Roup’s assets, including $3,729.24 held in a Health Savings Account (HSA). Roup asserted these funds were exempt from attachment or garnishment because his HSA is a retirement plan under section 13-54-102(1)(s), which exempted certain types of property (including funds held in any “retirement plan”) from levy and sale. The issue this case presented for the Supreme Court's review centered on whether an HSA qualified as a “retirement plan” for the purposes of section 13-54-102(1)(s), C.R.S. (2014). The Court held that an HSA is not a “retirement plan” within the meaning of Colorado’s exemption statute. "An HSA is not intended to replace income lost as a result of retirement; it is intended to cover medical costs incurred at any point during a person’s lifetime. The General Assembly has not chosen to provide an exemption for HSAs in the relevant statutes." The Court affirmed the judgment of the court of appeals. View "Roup v. Commercial Research, LLC" on Justia Law

Posted in: Health Law

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Allstate Insurance Company petitioned for review of a court of appeals' judgment that reversed the dismissal of a breach of assignment claim brought by Medical Lien Management (MLM). The district court effectively construed MLM's Lien and Security Agreement with a motor vehicle accident victim (upon which the underlying complaint was premised), as failing to assign the victim's right to the proceeds of his personal injury lawsuit against Allstate's insured. The court of appeals found a valid assignment to MLM all rights to the future proceeds from the personal injury claim in an amount equal to the costs of medical services paid for by MLM, as well as a sufficient allegation in the complaint of an enforceable obligation by Allstate to pay the assigned sums to MLM. The Supreme Court reversed, finding that the court of appeals erred in finding the purported assignment in this case. View "Allstate Insurance Co. v. Medical Lien Management, Inc." on Justia Law

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The issue before the Supreme Court in this case was a trial court's order striking the testimony of plaintiff's rebuttal expert witness, and portions of two of plaintiff's previously disclosed expert witnesses. The underlying case centered on a medical malpractice claim brought by the parents of a minor child against a hospital, its management and the doctor that delivered the child. The minor was allegedly injured at birth after his umbilical cord wrapped around his neck, depriving his brain of oxygen. The parties disputed the cause of the child's injuries: Plaintiffs argued the child was injured by preventable intrapartum events (namely Defendants' alleged negligence); defendants argued the injuries occurred days, or possibly weeks prior to birth. Upon review of the matter, the Supreme Court held that the trial court abused its discretion when it excluded plaintiff's expert's rebuttal testimony because her testimony properly refuted a central theory of the defendants' case. The trial court also abused its discretion when it excluded the disclosed experts' testimony because the late disclosure of their testimony did not harm the defendants, as required for sanctions under Rule 37. Accordingly, the Court made the rule absolute and remanded the case for further proceedings. View "In re Warden v. Exempla" on Justia Law

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Respondent Robert Lego admitted his wife to Porter Hospital's emergency room. She stayed there for approximately two months. The Legos' insurance provider notified Respondent in writing that it would stop covering Mrs. Lego's hospital care after six weeks. Respondent disputed the insurer's position and refused to discharge his wife from the hospital after six weeks. The hospital followed the insurer in notifying Respondent the insurance coverage for Mrs. Lego would end, and that the Legos would be responsible for any uncovered charges. In an effort to recoup those charges Respondent refused to pay, the hospital sued on the grounds of unjust enrichment with recovery in quantum meruit. Respondent moved to dismiss, arguing that the action was barred by a general statute of limitations codified in section 13-80-103.5(1)(a) C.R.S. (2011). The trial court denied the motion; the appellate court reversed, finding the trial court erred in determining the amount the insurance company did not pay was liquidated or determinable damages within the meaning of the statute. The Supreme Court reversed the appellate court, interpreting section 13-80-103.5(1)(a) C.R.S. (2011) to mean its six-year limitations period applied in this case, particularly when the amount owed was ascertainable either by reference to the agreement, or by simple computation using extrinsic evidence. View "Portercare Adventist Health System v. Lego" on Justia Law