trends regarding disputes in the health care industry to ask a question during the presentation,...

Trends Regarding Disputes in the

Health Care Industry

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Presented by:Mark A. Finkelstein

Smith Moore Leatherwood LLPTwo Hannover Square, Suite 2800

434 Fayetteville StreetRaleigh, NC 27601

T: (919) 755-8700 F: (919) [email protected]

© 2009 Smith Moore Leatherwood LLP. All Rights Reserved.© 2009 Smith Moore Leatherwood LLP. All Rights Reserved.

The Legislative Arena

Federal:

• The smart money is that some form of health care reform that will give government an even greater role will pass.

• Increased government role will lead to more administrative and criminal litigation. (More money and more rules means more rules will be broken).

• Reporting for liability payments made to or on behalf of Medicare beneficiaries.

• Our white collar criminal defense, professional licensure and administrative litigators have never been busier.


The Legislative Arena

State (North Carolina):

• North Carolina traditionally not very Plaintiff-friendly but becoming more so legislatively.

• Product liability statute of repose extended from 6 years to 12 years.

• Bill replacing contributory negligence with comparative negligence and modifying joint and several liability passed the House and will be considered by the Senate next May.

• Plaintiff’s recovery barred if his fault is greater than that of all the Defendants. Jury must apportion responsibility among Defendants, but judge may reallocate responsibility due to insolvancy of Defendants within 90 days of the date of the judgment.

• Qui Tam False Claim Act allows private parties to sue for fraud on the government.


Employment and Labor

• While union representation in the United States has fallen from a high of 35% in the1950’s to under 8% today, union representation in health care is rising.

• Unions represented over 1.3 million employees in health care in 2008.

• Unions are currently winning almost 75% of NLRB elections in health care, far more than other industries and more than the rate in the past.

• The current administration is more supportive of unions than the past administration.

• Health Care is a labor intensive industry: About 60% of hospital’s cost is for labor.

• Card check unlikely to get through the Senate.


Trends in General Litigation

The Court House

I. Continuing trend away from jury trials (NC fiscal year end June 30, 2008):

27,226 civil Superior Court cases filed: 303 jury trial; 3,341 bench trials; 3,357 final order without trial.

2,728 non-motor vehicle negligence cases filed including legal and med malpractice and slip and falls filed: 59 jury trials; 265 bench trials; 184 final order without trial.

100,125 civil district filings: 71 jury trials; 5279 bench trials; 41,459 disposed of by the clerk (defaults in collection cases)


Trends in General Litigation

MELENDEZ-DIAZ v. MASSACHUSETTS (USSC; Sixth Amendment right to confrontations and subpoenas to hospital employees to admit lab tests in criminal cases; notice and demand (admit without objection) is constitutional.

II. Medical staffing case and the increasing importance of narrowly tailored non-competes.

III. Liability for privacy and data breach related issues in an increasingly electronic age.


The Economy

I. The economy is leading to more unemployed people and therefore more emergency room visits. This increases the chances of medical error made by overworked ER staff.

II. Stimulus Bill (ARRA) sends money to health care with strings if you are a contractor or subcontractor to a private or governmental entity receiving ARRA money, you are covered. Whistleblower protection prohibits retaliation; employee can meet burden of proof through circumstantial evidence showing a protected disclosure was a “contributing factor.” Employee can receive reinstatement, compensatory damages and attorneys fees.

III. It’s a good time to build: Re-zonings going easier, construction materials less expensive and good contractors eager for work.


How to Use Your Dispute Lawyer in Today’s Economy

• Let your lawyer know what you really want and need.

a) Quick settlementb) Delayed settlement with limited activityc) Overpowering settlement strategyd) Trial or arbitration

• Figure out early which cases you will settle and which you want to try or will have to try.

• Understand the relationship between tight money and negotiation timing.

• Business partners fight over money more often.

• Corporate Divorce

• Non-Competes


Universal Trial Themes for the Few Cases You Try

• Explain what makes your side good and successful

• Focus on issues where you can go on the offensive

• Trial is a zero sum game: out work your opponent

• Prior preparation prevents poor performance

• Dramatize key points: PRESENTATION COUNTS


Questions?

Presented by:

Mark A. FinkelsteinSmith Moore Leatherwood LLP

Two Hannover Square, Suite 2800434 Fayetteville Street

Raleigh, NC 27601T: (919) 755-8700 F: (919) [email protected]

trends regarding disputes in the health care industry to ask a question during the presentation,...

Documents

health care industry

bench trials

form of health care

jury trials nc fiscal

collection cases

comparative negligence

final order

civil superior court