Mark Hansen 2019
Committee Chair Corner - Medical Defense and Health Law Committee
Heyl, Royster, Voelker & Allen
I have had the honor of serving as Chair of the Medical Defense and Health Law Committee since 2017. The Committee consists of members who routinely represent physicians, hospitals, and other healthcare providers and entities in medical malpractice actions, health law advisory and regulatory support such as defense of Qui Tam actions, federal fraud and abuse claim evaluation and defense, peer review/quality improvement counseling, and licensure board appearances. We also have members who regularly represent nursing home clients in litigation and other matters.
Our primary goal is to provide value to our members through CLE programs, Webinars, and newsletter articles. Additionally, our monthly calls typically include a point of law discussion led by one of our Vice Chairs. Through our programs, publications, and monthly calls, we keep our members informed of developments in the law and provide them with knowledge they can use to achieve the best results for their clients.
As a Committee, we strive to publish a newsletter on a regular basis. Since the 2018 Annual Meeting, we have published newsletters on a number of interesting topics, including:
We also routinely provide CLE programs on topics that are of great interest to our members. For instance, at the 2019 Midyear Meeting, we sponsored or co-sponsored two CLE programs:
Current Trends in FCA Healthcare Litigation
Advanced Radiological Imaging Techniques for Product Evaluation
We are excited to have sponsored a medical liability track at the 2019 Professional Liability Roundtable, which was held in New York on May 30. This is the first year a medical liability track has been offered as part of the Professional Liability Roundtable. The medical liability track focused upon issues relating to the defense of medical liability cases and featured presentations of interest to lawyers and claims professionals, including:
• Overcoming Sticker Prices: The Emergence of the Reasonable Value Approach
Increasingly, legal practitioners and insurance industry professionals encounter exorbitant life care plans in claims that contain future estimated medical charges for an injured plaintiff's needs during his/ her life expectancy. In most states, practitioners attempting to rebut medical charges with negotiated amounts actually paid by third-party payers encounter collateral source rule objections. However, there is an emerging body of case law recognizing a dynamic market rate rebuttal theory, the reasonable value approach, significantly minimizing exposure created by life care plans. This dynamic and engaging presentation will be given by an attorney, a seasoned insurance industry professional, and an industry expert witness who have significant experience in the development and application of the reasonable value approach in a variety of professional liability claims. The presenters will explore the economic and healthcare policy underpinnings and identify practical tools necessary to develop a market rate estimate to rebut healthcare sticker prices that are totally unmoored from the reality of arm's-length transactions actually taking place within the marketplace. They will also include recent examples of the monetary impact the approach has had on life care plans and how this approach has altered the ultimate resolution of claims.
Speakers: Thomas J. Dawson, III, TD&P Consulting, Inc., Washington, DC USA; Rick Farlow, BerkleyMed, Nashville, TN USA; Thomas Geroulo, Bardsley, Benedict + Cholden, LLP, Scranton, PA USA; J. Tyler Robinson, Heyl, Royster, Voelker & Allen, Springfield, IL USA
• Co-Defending the Physician and the Medical Product Manufacturer
When surgeons and medical device manufacturers find themselves as defendants in a lawsuit, blaming the other may be tempting but only serves to suggest agreement with the plaintiff's contention that an error occurred and the net effect is to drive up the damages award. The speakers will share lessons learned in defending surgeons and medical device manufacturers in these complex cases involving large or even catastrophic damages in which each client's belief was that the patient's surgical complication was caused solely by another party, even while another defendant in the case looked to place fault squarely on them. This program offers practical suggestions for working collaboratively in the defense of the case to achieve the best outcome for your respective client under what can be extremely difficult and stressful circumstances for both the client and the defense attorney.
Speakers: Julie B. du Pont, Arnold & Porter, New York, NY USA; Andrew Hall, Medmarc, Chantilly, VA USA; Robert P. (Bob) MacKenzie, Ill, Starnes Davis Florie, Birmingham, AL USA
• Caught on Tape: Strategies for Mitigating Damages in the Age of Cell Phones and Granny Cams
A picture is worth a thousand words and in litigation it can translate to thousands, if not millions of dollars. With the ever-changing laws and the increasing damages potential for plaintiffs and their attorneys, we can expect the number of claims supported by videographic evidence to continue to escalate. The panel will provide video examples of negligent and abusive behavior caught on tape, identify published verdicts and settlements, and address methods of damage control, all in effort to keep indemnity in check.
Speakers: Constance A. Endelicato, Wood Smith Henning & Berman, Los Angeles, CA USA; David Prisco, Avalon Claims Management, Columbus, OH USA; Robert G. Smith, Lorance Thompson PC, Houston, TX USA; Kelly A. Waters, Wood Smith Henning & Berman, Berkeley Heights, NJ USA
As far as future CLE programs are concerned, we also encourage you to register for the Webinar we are presenting on June 19:
• Hospital Liability: Trends and Tactics in Plaintiffs’ Search of the “Mega Verdict”
June 19 (12:00-1:00 p.m. CDT)
This Webinar will analyze statistical data as to trends in verdicts and settlements specifically involving hospitals and long-term care facilities, by comparison of various medical departments, healthcare providers, types of injuries, and jurisdictions with and without tort reform caps. It will also address plaintiffs’ tactics to circumvent caps, including analysis of the increasing emergence of litigation involving elder and dependent adult abuse and neglect, Stark Law and False Claims Act violations, as well as ADA violations, all in an attempt to obtain punitive damages and attorneys’ fees. Lastly, a discussion will be had as to which of the above claims may arguably be subject to insurance coverage.
Speakers: Constance Endelicato, Wood Smith Henning & Berman, Los Angeles, CA USA; Geri Luebeck, Providence St. John’s Health Center, Santa Monica, CA USA; Maritza Peña, Marlow, Adler Abrams, Newman & Lewis, Coral Gables, FL USA
Looking forward, we are sponsoring or co-sponsoring a number of terrific programs at the 2019 Annual Meeting in July, including:
• The Impact of Drone Technology on Healthcare
Drone technology has grown from a kitschy hobby to a multibillion dollar industry in less than a decade. This trajectory of growth is nearly unparalleled in other industries. As drone technology has become more prevalent in everyday life, its impacts are being felt in nearly every major industry – including the healthcare industry. Healthcare providers are currently experimenting with drone technology to quickly transport blood products, medical supplies, and laboratory specimens to remote or densely populated areas. Companies are also conceptualizing and testing drones that provide telemedicine services, supply cardiac defibrillators, and transport critical care patients. The application for drone technology is seemingly limitless, but the potential legal pitfalls are relatively uncharted. This presentation will provide an overview of the state of drone technology, the current and proposed drone uses in the healthcare industry, and the regulatory and legal issues in using drone technology in the healthcare industry.
Speakers: Julie M. Bargnesi, Bargnesi Britt, PLLC, Buffalo, NY USA; Peter Bordonaro, Calspan Holdings, Buffalo, NY USA; Adam M. Lynch, Bargnesi Britt PLLC, Buffalo, NY USA; Kevin Teen, Kittyhawk, Raleigh, NC USA
• The Millennial Juror
The generational difference in jurors has never been more glaring. From the older generation who is less tech savvy to the millennial and post-millennial generation who “snaps” every aspect of their life to their friends, it is difficult to appeal to all at trial. This panel will address the transition of juries over the years and will discuss how to appeal to juries with wide age gaps. This will cover Gen X, Gen Y, and post-millennial views at trial and how they may impact your case. The program will examine in detail what evidence and presentations work for people such as demonstrative, technology, “flashy” presentations, and old-school PowerPoints.
Speakers: David Aveni, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, San Diego, CA USA; Ted Kendrick, Birmingham, AL USA; Thomas A. Kendrick, Norman, Wood, Kendrick & Turner, Birmingham, AL USA; Katie T. Powell, Butler Snow LLP, Birmingham, AL USA
• Innovative Technology Sparks Evolution for Courtroom Demonstratives
The use of demonstrative evidence is becoming ever present in the courtroom. This interactive session will demonstrate the latest technology (e.g. laser scans, drone footage, 3D printing, animation, and virtual reality) for use at trial. In addition, there will be a discussion of courtroom technology (equipment, software, and viewing equipment) available at trial. This panel will offer insight into the use of technology in a complex construction case as an example that will be applicable to cases of all shapes and sizes and all areas of the law.
Speakers: Tamara L. Boeck, Stoel Rivers LLP, Boise, ID USA; Christopher E. Espinosa, Exponent, Irvine, CA USA; Quentin F. Urquhart, Jr., Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA USA
• Smart Products Require Smarter Manufacturers
Eavesdrop while the General Counsel of an auto manufacturing company and legal experts discuss the design of new smart features and how it is influenced by data collection to improve the customer experience; the ongoing relationship with the customer; data security and privacy (GDPR and other statutes); and litigation risks and strategies. Considerations of privacy, data security, big data, and regulatory requirements must be central to how companies design products in today’s global economy.
Speakers: Louis Charette, Lavery, de Billy L.L.P., Montreal, QC Canada; Chris S. Egner, Continental Corporation, Fort Mill, SC USA; Alexandra Simotta, SIX Payment Services (Europe) S.A., Vienna, Austria; Robert G. Smith, Jr., Lorance & Thompson, P.C., Houston, TX USA
Finally, we are fortunate to have a talented group of Vice Chairs, all of whom have made significant contributions to the success of the Committee. Those Vice Chairs include:
Programs and Projects: Erik Legg
Publications: Robert Smith
Webinar: Constance Endelicato
Membership: Christian Hines
Communications: Lesa Colon
Health Law: Megan Hargraves
Nursing Home/Long Term Care: Mary Anne Mellow
Insurance Executives: Stephanie Sheps
Corporate Counsel: Shari Aberle
International: Kurt Gerstner
Special Projects: Doug Vaughn
Without the hard work and commitment of our Vice Chairs, we could not provide the quality programming and publications that our members have come to expect.
The Medical Defense and Health Law Committee is a very active Committee. We consistently provide content that is both interesting and valuable to our members and to the IADC membership generally. If you have any interest in becoming an active member of the Medical Defense and Health Law Committee, please join our monthly conference calls which are held on the second Wednesday of each month at 3:00 p.m. CDT.