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Ex-Employee Claims Disability Discrimination In ADA Suit Against Kaiser Permanente

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By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 4, 2020, a former employee of Kaiser Permanente Insurance filed a class-action suit in the U.S. District Court for the Northern District of Georgia, claiming discrimination. She says the company required her to take a “competency test” to determine if she could keep her job after the Atlanta business learned of her medical disability (anxiety and depression). The suit claims that the insurance company refused to accommodate her disability and fired her after she failed.

Alleged Disability Discrimination.

The plaintiff worked for Kaiser Permanente Georgia Region between October 2010 and August 2020. According to the lawsuit that was filed, she was diagnosed with anxiety and depression in 2018 and in May 2019 but was cleared by her physician to work. According to the suit, Kaiser Permanente singled her out, forced her to disclose her anxiety and depression, and required her to take a “competency test” for a job she already held. It is worth noting that mental conditions such as “anxiety and depression,” are protected by the Americans with Disabilities Act (ADA).

In March 2019, the plaintiff requested a reasonable accommodation—i.e., a postponement of the testing until she was mentally stable enough to sit for the test. She claims her request was denied outright by Kaiser despite its knowledge of her disability. Per the complaint, the plaintiff was told that she had failed the competency test, despite never having received her scores. In August 2019, she was retested and Kaiser told her that she failed.

On November 8, 2019, the employee was terminated because she “no longer met the job requirements and was not successful at passing the second attempt of the competency test,” the complaint said.

Failure to Accommodate Under the ADA.

The former employee alleged disability discrimination, unlawful medical requests, and failure to accommodate her disabilities under the ADA. She’s seeking unspecified damages for loss of past and future income, mental anguish, and emotional distress, along with her court costs and attorney fees.

Click here to read the complaint in full.

For more information, read our prior blog on a similar case dealing with an insurance company that was sued for mental health discrimination.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At The Health Law Firm, we provide legal services for all health care providers and professionals. This includes nurses, resident physicians, mental health counselors, social workers, pharmacists, and health facilities. It also includes medical students, medical school professors, and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Konnath, Hailey. “Kaiser Permanente Hit With ADA Suit Over Competency Tests.” Law360. (November 4, 2020). Web.

Shaak, Erin. “Singled Out: Lawsuit Claims Kaiser Permanente Denied ‘Competency Test’ Accommodation for Ex-Employee with Disability.” Newswire. (November 5, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law

By |2021-02-24T12:12:50-05:00February 25th, 2021|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Florida Court Sides With University of Miami, Says University Is Immune To Medical Malpractice Suit

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On October 28, 2020, a Florida appeals court tossed out a medical malpractice suit accusing a University of Miami doctor of providing negligent treatment at a public teaching hospital. A panel of the Florida Third District Court of Appeal upheld a circuit judge’s ruling that the university is protected by sovereign immunity when faculty members provide care at Jackson Memorial Hospital, a teaching hospital.


Background of the Suit.

The ruling arose out of a case in which a University of Miami physician provided treatment in 2013 to a patient at Jackson Memorial. A medical malpractice lawsuit was filed against parties including Jackson Memorial, the university, and the physician. The suit alleged that a failure to provide anticoagulants resulted in disabilities.

Jackson Memorial Hospital is owned and operated by Miami-Dade County through the Public Health Trust. It is supported by Miami-Dade County residents through a portion of the county’s sales tax. Because of this, it is considered to be the same as a state agency, and its employees have the same sovereign immunity as state employees do.

The judge dismissed the suit against the doctor, saying that because the doctor provided services at the public teaching hospital, pursuant to the University’s agreement with Jackson Memorial, he should be considered an agent of the hospital. Therefore, he is entitled to sovereign immunity.

Pointing to state law and an agreement with Jackson Memorial, the university also argued that it was shielded by immunity from liability. The university claimed it was entitled to immunity under Sections 768.28(9)(a) and (10)(f), Florida Statutes. Since any liability the university had would be vicarious liability based on the alleged negligence of the physician, if the physician was determined to be immune, the university would have the same defense.

Additionally, Section 768.28, Florida Statutes, was amended by the Florida Legislature in 2011 to cover nonprofit independent universities that provide patient care at government-owned teaching hospitals. The same year, Jackson Memorial and Miami University amended the terms of their agreement to incorporate the amended sovereign immunity statute, according to the judge’s opinion in the case.

The Trial Court’s Ruling.

The appellate court panel agreed with the circuit judge, saying it was undisputed that the doctor was a University of Miami faculty member and employee at the time of the treatment. Additionally, the agreement between Jackson Memorial and the University of Miami was properly redrafted in 2011 to reflect the amendment to the statute. “Under the terms of the 2011 agreement and section 768.28, Florida Statutes, the university is immune from suit here because the physician treated the patient while acting as Jackson’s statutory agent,” the appellate panel said in the opinion.

Click here to read the court’s opinion in full.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in prosecuting and in defending complex civil litigation in state and federal courts. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 or Toll-Free: (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

“State Appeals Court: University Of Miami Shielded From Medical Malpractice Lawsuit.” Miami CBS Local. (October 28, 2020). Web.

Kang, Peter. “Fla. Court Says Univ. Of Miami Immune To Med Mal Suit.” Law360. (October 28, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

Yale University to Pay $87,500 Settlement For Alleged Pay Discrimination

Attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Yale University agreed to pay $87,500 to resolve discrimination allegations with the U.S. Department of Labor. The discrimination alleged that the Ivy League school paid four women cardiologists significantly less than their male colleagues from October 2016 to September 2017. While not admitting the allegations, the university agreed to the settlement which will reportedly cover the difference in pay for the women affected, the Office of Federal Contract Compliance Programs (OFCCP) said.

Alleged Pay Discrimination.

The OFCCP first detected the pay disparities during a routine compliance audit of the university’s medical school, the agreement said. The agency found that in 2016, Yale University paid four female cardiologists less than similarly situated male physicians at the School of Medicine’s Cardiovascular Medicine Section.

According to the settlement, Yale hired the doctors as part of the university’s “acquisition of community practices and hospitals associated with the Yale-New Haven Hospital System.” In 2018, Yale allegedly cut the women doctors’ employment category and moved them to a new faculty category. OFCCP claims that the medical school category is supposed to have a uniform compensation structure in place. Click here to read the settlement agreement in full.

In response to the allegations, a Yale was quoted as saying: “The conciliation agreement involves only four employees out of a workforce of over 16,000. OFCCP admitted that it found no pay disparities as to any but these four employees, who held roles in an employment category that has not existed for over two years.”

To read the press release issued by the Department of Labor, click here.

Additionally, read my recent blog on a previous discrimination lawsuit against Yale.

What does this show us? That at least in federal programs and in educational institutions and medical programs receiving federal funds, discrimination is prohibited and action will be taken to remedy it.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for physicians, including residents, and fellows, as well as medical students. We also represent other health professionals, clinical professors, dentists, psychologists, psychiatrists, mental health counselors, and other healthcare providers. We represent health facilities, medical groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, physicians, including those involved in clinical research, complaints, and investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Ottaway, Amanda. “Yale Settles OFCCP Claims That It Underpaid Female Doctors.” Law360. (October 5, 2020). Web.

Smith, Paige. “Yale University Settles DOL Claims of Pay Bias Against Women (1).” Bloomberg Law. (October 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm

By |2020-12-21T15:29:05-05:00February 8th, 2021|Categories: In the News, Nursing Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Federal Judge Rules Florida Pediatric Group Must Face EEOC Suit for Nurses’ Retaliation Compliant

George F. Indest III with 30+ years of experience, is Board Certified in health lawBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 4, 2020, a Florida federal court judge ruled that a Tampa-based pediatric medical group cannot escape a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit, denying its attempts to dismiss the case. According to the federal agency, Pediatric Health Care Alliance unlawfully retaliated against a nurse after the nurse reported a doctor for sexual harassment. U.S. District Judge Thomas Barber denied the medical group’s motion to dismiss, saying it neglected to confront or defend against the nurse’s claim that the medical group demoted her as punishment.

The EEOC Complaint: Nurse Forced to Quit After Reporting Sexual Harassment.

On June 22, 2020, the EEOC filed an employment lawsuit in the United States District Court for the Middle District of Florida. According to the complaint, a female nurse at Pediatric Alliance reported that a doctor at the company inappropriately touched her on two different occasions. Notably, that doctor was also the Vice President (VP) of the company.

According to the suit, the nurse suffered almost immediate retaliation for filing the complaint against the VP. The EEOC alleges that Pediatric Alliance transferred her to a different location against her wishes, replaced her nursing duties with administrative ones, and docked her pay. As a direct consequence of the retaliation, the EEOC contends that the long-time employee was, in effect, forced to resign.

To read the EEOC’s press release on the lawsuit, click here.

To read the EEOC’s lawsuit, in this case, click here.

Retaliation for filing A Sexual Harassment Complaint is Unlawful, Even if it Later Turns Out the Complaint Wasn’t Valid: Title VII of the Civil Rights Act.

Under federal law (Title VII of the Civil Rights Act of 1964), employees have a legal right to raise workplace discrimination or harassment complaints. If an employee exercises this right, their company or organization is strictly prohibited from retaliating against them for doing so. Employers cannot take adverse employment action against an employee in retaliation for making a formal or informal complaint of harassment.

Adverse action occurs when an employee is penalized or punished in some form. In this case, transferring the nurse to a less desirable location, reducing salary, and taking away job duties are all examples of adverse action.

Analysis of the Ruling.

In this case, the defendant’s medical group/employer tried to get the court to dismiss the lawsuit (complaint) based on the EEOC’s earlier determination that the nurse failed to sufficiently support charges of sexual harassment. If the employer had not retaliated against the nurse, in this case, would have then been over. But that didn’t happen. The complaint asserted a claim of retaliation in violation of Title VII, not sexual harassment.

The court also noted that the medical group did not argue that the EEOC’s retaliation allegation was insufficient. Accordingly, the judge denied the motion to dismiss filed by Pediatric Alliance, the employer.

To view the court’s opinion in full, click here.

Tips for Employers to Avoid EEOC Complaints.

1. The employer should adopt a “zero tolerance” policy for discrimination and harassment.

2. Make sure your officers, supervisors, and key employees are instructed on a regular basis about what situations are considered sexual harassment or discrimination.

3. Make sure your officers, supervisors, and key employees sign a statement each year, stating that they are aware of the company’s “zero tolerance” policy and what constitutes harassment and discrimination.

4. Establish a method by which employees can submit reports of harassment and discrimination without the perpetrator becoming aware of it. This should be part of the employer’s compliance program.

5. Be sure your company or group has a good directors and officers (D&O) liability insurance and excess liability insurance policy that covers sexual harassment and discrimination claims.

6. Include an indemnification clause in the contracts of officers, supervisors, and key employees, requiring them to indemnify the employer in any case where the employer is held liable for acts of sexual harassment or discrimination.

7. Be sure that an employee who files a complaint does not have adverse employment action taken against him or her, especially based solely upon the word of the person against whom the complaint was filed. Bring a human relations expert in as early as possible to consult on the case, as well as an employment law defense attorney.

8. Make sure that all employees, including officers, supervisors, and key personnel, receive training once a year on avoiding sexual harassment and discrimination and document it in their personnel/human resources file. Hiring an outside trainer can make this less burdensome and more enjoyable. Again, this should be part of the employer’s compliance plan.

 

Don’t Wait Until It’s Too Late, Talk to an Experienced Attorney Now.

Florida workers have a right to report sexual harassment or discrimination without facing retribution, but workers often file complaints that are not valid. The EEOC advances opportunities in the workplace by enforcing federal laws prohibiting employment discrimination. Find out how The Health Law Firm can help if you are an employer that finds itself in this legal situation.

Additionally, please read one of our recent blogs dealing with a similar EEOC lawsuit.

Contact Health Law Attorneys Experienced in Representing Nurses and Other Healthcare Professionals.

The Health Law Firm’s attorneys routinely provide legal representation to nurses, physicians, medical groups, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Shanes, Alexis. “Fla. Pediatric Group Can’t Dodge EEOC Retaliation Suit.” Law360. (November 4, 2020). Web.

“EEOC Sues Pediatric Health Care Alliance for Retaliation Over Harassment Complaints.” U.S. Equal Employment Opportunity Commission (EEOC). (June 22, 2020). Web.

Bean, Mackenzie. “Florida practice retaliated against nurse for reporting harassment, EEOC says.” Becker’s Hospital Review. (November 9, 2020). Web.

 

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714. Call (407) 331-6620 or Toll-Free at (888) 331-6620.

KeyWords: Equal Employment Opportunity Commission (EEOC) investigation defense, discrimination harassment complaint defense attorney, legal representation for physicians, medical group defense attorney, complex health care litigation attorney, complex civil litigation attorney, complex medical litigation lawyer, medical staff peer review defense attorney lawyer, federal administrative hearing defense attorney, hospital complaint investigation defense, peer review defense attorney, medical staff investigation defense lawyer, medical staff clinical privileges defense legal representation, hospital medical staff fair hearing defense attorney lawyer, hospital medical staff fair hearing defense legal counsel, legal representation for healthcare business litigation matters, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, representation for EEOC complaints, workplace retaliation defense lawyer, healthcare employment law defense lawyer, nurse attorney, legal representation for nurses, legal representation for complaints against nurses

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law

 

 

Yale University Agrees to Pay $87,500 to Settle Allegations It Underpaid Female Doctors

Attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Yale University agreed to pay $87,500 to resolve discrimination allegations with the U.S. Department of Labor. The discrimination alleged that the Ivy League school paid four women cardiologists significantly less than their male colleagues from October 2016 to September 2017. While not admitting the allegations, the university agreed to the settlement which will reportedly cover the difference in pay for the women affected, the Office of Federal Contract Compliance Programs (OFCCP) said.

Alleged Pay Discrimination.

The OFCCP first detected the pay disparities during a routine compliance audit of the university’s medical school, the agreement said. The agency found that in 2016, Yale University paid four female cardiologists less than similarly situated male physicians at the School of Medicine’s Cardiovascular Medicine Section.

According to the settlement, Yale hired the doctors as part of the university’s “acquisition of community practices and hospitals associated with the Yale-New Haven Hospital System.” In 2018, Yale allegedly cut the women doctors’ employment category and moved them to a new faculty category. OFCCP claims that the medical school category is supposed to have a uniform compensation structure in place. Click here to read the settlement agreement in full.

In response to the allegations, a Yale was quoted as saying: “The conciliation agreement involves only four employees out of a workforce of over 16,000. OFCCP admitted that it found no pay disparities as to any but these four employees, who held roles in an employment category that has not existed for over two years.”

To read the press release issued by the Department of Labor, click here.

Additionally, read my recent blog on a previous discrimination lawsuit against Yale.

What does this show us? That at least in federal programs and in educational institutions and medical programs receiving federal funds, discrimination is prohibited and action will be taken to remedy it.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for physicians, including residents, and fellows, as well as medical students. We also represent other health professionals, clinical professors, dentists, psychologists, psychiatrists, mental health counselors, and other healthcare providers. We represent health facilities, medical groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, physicians, including those involved in clinical research, complaints, and investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Ottaway, Amanda. “Yale Settles OFCCP Claims That It Underpaid Female Doctors.” Law360. (October 5, 2020). Web.

Smith, Paige. “Yale University Settles DOL Claims of Pay Bias Against Women (1).” Bloomberg Law. (October 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm

By |2020-12-21T15:16:58-05:00January 25th, 2021|Categories: Health Facilities Law Blog, In the Know, In the News|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Yale University to Pay $87,500 Settlement For Allegations It Underpaid Female Doctors

By Carole C. Schriefer, J.D.

Yale University agreed to pay $87,500 to resolve discrimination allegations with the U.S. Department of Labor. The discrimination alleged that the Ivy League school paid four women cardiologists significantly less than their male colleagues from October 2016 to September 2017. While not admitting the allegations, the university agreed to the settlement which will reportedly cover the difference in pay for the women affected, the Office of Federal Contract Compliance Programs (OFCCP) said.

Alleged Pay Discrimination.

The OFCCP first detected the pay disparities during a routine compliance audit of the university’s medical school, the agreement said. The agency found that in 2016, Yale University paid four female cardiologists less than similarly situated male physicians at the School of Medicine’s Cardiovascular Medicine Section.

According to the settlement, Yale hired the doctors as part of the university’s “acquisition of community practices and hospitals associated with the Yale-New Haven Hospital System.” In 2018, Yale allegedly cut the women doctors’ employment category and moved them to a new faculty category. OFCCP claims that the medical school category is supposed to have a uniform compensation structure in place. Click here to read the settlement agreement in full.

In response to the allegations, a Yale was quoted as saying: “The conciliation agreement involves only four employees out of a workforce of over 16,000. OFCCP admitted that it found no pay disparities as to any but these four employees, who held roles in an employment category that has not existed for over two years.”

To read the press release issued by the Department of Labor, click here.

Additionally, read my recent blog on a previous discrimination lawsuit against Yale.

What does this show us? That at least in federal programs and in educational institutions and medical programs receiving federal funds, discrimination is prohibited and action will be taken to remedy it.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for physicians, including residents, and fellows, as well as medical students. We also represent other health professionals, clinical professors, dentists, psychologists, psychiatrists, mental health counselors, and other healthcare providers. We represent health facilities, medical groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, physicians, including those involved in clinical research, complaints, and investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Ottaway, Amanda. “Yale Settles OFCCP Claims That It Underpaid Female Doctors.” Law360. (October 5, 2020). Web.

Smith, Paige. “Yale University Settles DOL Claims of Pay Bias Against Women (1).” Bloomberg Law. (October 2, 2020). Web.

About the Author: Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456 or Toll-Free: (888) 331-6620. Its main office is in the Orlando, Florida area.

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm

By |2020-12-21T15:24:46-05:00January 21st, 2021|Categories: Colorado Health Law Blog, In the News|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Florida Dentist’s COVID-19 Interruption Insurance Claim Dismissed by Judge

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

OSHA Fines Several Health Care Systems Over COVID-19 PPE Violations

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 14, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a citation against a healthcare system in Louisiana. Christus Shreveport-Bossier Health System is facing fines for failing to safeguard its employees with the appropriate personal protective equipment (PPE) during the coronavirus pandemic. OSHA has proposed $13,494 in penalties, the maximum allowed by law.

OSHA’s Coronavirus-related Investigation.

After receiving reports of employee exposure, OSHA opened a coronavirus–related investigation. The agency found that the health system violated workplace safety protocols and put employees at risk of COVID-19 exposure.

In a press release, OSHA stated, “emergency facility employees often shared used protective gowns or did not have protective gowns to wear while treating patients.” Click here to read the press release in full.

Christus Health had 15 business days from receipt of the citation and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings. In a statement, Katy Kiser, a spokesperson for Christus Health, said, “We are actively contesting the citation and the penalty. We have worked hard to secure the PPE we have needed to get us through many phases of the pandemic and maintain a local contingency supply of at least ten days. To date, we have experienced no gaps in PPE supply during pandemic response.”

A Series of COVID-19 Citations for Different Health Systems.

After receiving criticism that it was not adequately investigating COVID-19 complaints, OSHA announced it would ramp up enforcement. As a result, the agency said it would also issue fines against New Jersey-based Bergen New Bridge Medical Center and Hackensack Meridian Health. The two healthcare systems were cited for failing to provide appropriately fit respirator masks to its home healthcare employees. Additionally, after providing respirators, they didn’t provide adequate training and compliant medical evaluations.

Click here for more on this story.

To read OSHA’s Enforcement Response Plan for Coronavirus Disease memo that was released in May 2020, click here.  For additional resources, visit OSHA’s COVID-19 response page on their website here.

Click here to read one of our recent blogs on this topic and learn more.

Health Providers Can and Should File Complaints with OSHA.

What these cases show is that health professionals whose employers fail to provide proper safety equipment, PPE, and other job-related protections, can file OSHA complaints. OSHA’s main purpose for existing is to protect employees from unsafe working environments. Although the fines OSHA assesses may be small, if the employer is fined, this may provide the basis for a workers compensation claim, a lawsuit, a union complaint, or all of three of these.

Furthermore, if the employer retaliates against the employee for filing an OSHA complaint, then the employee has a valid cause of action against the employer, regardless of any other rights, under OSHA’s “whistleblower protection” provisions.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Campbell, Braden. “OSHA Ramps Up Physical Inspections, COVID Case Reporting.” Law360. (May 19, 2020). Web.

Kutner, Max. “OSHA Fines La. Health System Over COVID-19 Violations.” (September 14, 2020). Web.

Shinkman, Ron. “OSHA fines 3 hospital systems for PPE violations.” Healthcare Dive. (September 15, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

 

Yale University Agrees to Pay $87,500 to Settle Allegations It Underpaid Female Doctors

Attorney George F. Indest IIIBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Yale University agreed to pay $87,500 to resolve discrimination allegations with the U.S. Department of Labor. The discrimination alleged that the Ivy League school paid four women cardiologists significantly less than their male colleagues from October 2016 to September 2017. While not admitting the allegations, the university agreed to the settlement which will reportedly cover the difference in pay for the women affected, the Office of Federal Contract Compliance Programs (OFCCP) said.

Alleged Pay Discrimination.

The OFCCP first detected the pay disparities during a routine compliance audit of the university’s medical school, the agreement said. The agency found that in 2016, Yale University paid four female cardiologists less than similarly situated male physicians at the School of Medicine’s Cardiovascular Medicine Section.

According to the settlement, Yale hired the doctors as part of the university’s “acquisition of community practices and hospitals associated with the Yale-New Haven Hospital System.” In 2018, Yale allegedly cut the women doctors’ employment category and moved them to a new faculty category. OFCCP claims that the medical school category is supposed to have a uniform compensation structure in place. Click here to read the settlement agreement in full.

In response to the allegations, a Yale was quoted as saying: “The conciliation agreement involves only four employees out of a workforce of over 16,000. OFCCP admitted that it found no pay disparities as to any but these four employees, who held roles in an employment category that has not existed for over two years.”

To read the press release issued by the Department of Labor, click here.

Additionally, read my recent blog on a previous discrimination lawsuit against Yale.

What does this show us? That at least in federal programs and in educational institutions and medical programs receiving federal funds, discrimination is prohibited and action will be taken to remedy it.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for physicians, including residents, and fellows, as well as medical students. We also represent other health professionals, clinical professors, dentists, psychologists, psychiatrists, mental health counselors, and other healthcare providers. We represent health facilities, medical groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, physicians, including those involved in clinical research, complaints, and investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Ottaway, Amanda. “Yale Settles OFCCP Claims That It Underpaid Female Doctors.” Law360. (October 5, 2020). Web.

Smith, Paige. “Yale University Settles DOL Claims of Pay Bias Against Women (1).” Bloomberg Law. (October 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm

By |2020-12-16T18:56:04-05:00December 16th, 2020|Categories: In the Know, In the News, Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Judge Dismisses Dentist’s COVID-19 Business Interruption Insurance Claim in Florida

George Indest Headshot

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

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