Litigation Center

Top cases show physicians had a forceful ally in the courts

One thing physicians from Florida to Hawaii had in common in 2017 was that the Litigation Center of the American Medical Association and State Medical Societies had their backs.

The Litigation Center was involved in legal battles that helped prevent an insurance mega-merger, protected physicians’ right to free speech, and fought back on multiple fronts against attempts to sidestep or peel back established state liability reforms. But it was a case involving the staff at a hospital in rural California that may have attracted the most attention.

Case signaled threat to end medical staff independence in California. In Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District et al, the Litigation Center provided significant legal and financial support after the hospital’s board of directors voted to terminate the medical staff organization, remove elected medical staff officers, install a slate of appointed officers and approve new medical staff bylaws and rules without staff input.

“This case serves as an existential threat to independent hospital medical staffs,” said Long Do, California Medical Association (CMA) legal counsel and director of litigation.

Just before closing arguments were scheduled in October, Tulare filed for Chapter 9 bankruptcy. As part the process, the hospital voluntarily suspended its license in late October, ceased operations, and then all pending litigation was frozen. But that doesn’t affect the need to push the lawsuit forward and maintain protections for staff independence and self-governance, Do said.

“Our biggest concern is that some sort of legal precedent would be set if they were allowed to get away with it,” Do added. “Another hospital could say to its staff: ‘If you don’t cooperate, that’s what we’re going to do to you.’”

The U.S. Court of Appeals for the District of Columbia blocked a proposed $54 billion health insurance merger. In its decision to uphold a lower-court decision, the appeals court cited arguments included in the Litigation Center’s amicus brief on the merger’s potential impact on quality and accessibility of patient care. Read more on the AMA’s successful efforts to block insurance Goliathy mega-mergers.

U.S. Appeals Court rules against state-ordered censorship in the exam room. In a 10–1 February ruling, the 11th U.S. Circuit Court of Appeals struck down key portions of a Florida law that restricted physicians’ right to discuss firearm safety with patients. In 2016, the AMA joined with eight other medical specialty societies to file an amicus asking for the full 11-judge panel to rehear the Wollschlaeger v. Florida case, which had previously been decided 2-1 in the state’s favor.

“The Second Amendment protects citizens against governmental confiscation of their firearms. Physicians neither confiscate nor facilitate anyone else’s confiscation of firearms—nor is it likely that they could or would do so,” the brief states and the court agreed.

“Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearms ownership, but it ‘may not burden the speech of others in order to tilt public debate in a preferred direction,’” states the majority opinion—which quotes from another Supreme Court opinion on freedom of speech in a medical context.

U.S. appeals court sides with U.S. Drug Enforcement Agency (DEA) in patient privacy-weakening ruling. In June, a three-judge panel from the 9th Circuit Court of Appeals reversed a U.S. District Court ruling and said the DEA doesn’t need a warrant to peruse Oregon’s prescription drug-monitoring database as state law requires.

The Litigation Center filed an amicus brief supporting the Oregon Prescription Drug Monitoring Program. The brief argued that a patient’s expectation to privacy is not diminished because the state collects and centralizes prescribing data. The Court disagreed, and it ruled that concern over the potential privacy intrusion was “speculative” and didn’t qualify as an imminent injury needing legal remedy.

Court ruling sends message about who must deliver message. A dissenting judge warned that the Pennsylvania Supreme Court’s 4–3 decision on informed consent could have “far-reaching, negative impact.” The court ruled that surgeons have the duty to provide patients with information about the alternatives, risks and benefits of a procedure to obtain informed consent and that the surgeon has to be the person who delivers that information personally.

The Litigation Center’s amicus brief in support of surgeon Steven A. Toms, MD, argued, “Neither common law nor statute has prescribed who must provide the information.” It also notes that Pennsylvania’s law focuses on what information a patient has been provided, “not on who provided it.”

Tort reforms face challenges in several states. While attempts at federal tort reform have stalled, many states have successfully enacted laws that better serve patients and physicians. The Litigation Center is working with physicians in Maryland and Michigan to battle “artful pleading” maneuvers which seek to bypass medical liability review process.

In Wisconsin, the Litigation Center is assisting efforts to persuade the state Supreme Court to hear a case in which would decide the constitutionality of Wisconsin’s $750,000 cap on noneconomic damages. The Litigation Center is lending financial support to the Kentucky Medical Association, which is fighting a legal battle against efforts to dissolve the state’s new medical review courts.

A 2010 federal law was designed to incentivize physicians to provide primary care in underserved areas. But state health officials in Hawaii are demanding Frederick Nitta, MD, return $205,000 he earned for primary-care services delivered to Medicaid beneficiaries. The issue is that, even though more than 60 percent of his time was spent providing primary care, Dr. Nitta is listed in directories and advertisements as an obstetrician-gynecologist.

By offering enhanced payment, Congress was encouraging physicians to provide primary care services to Medicaid patients. But the state’s actions will have the opposite effect of what Congress intended, the Litigation Center argued in the amicus brief it filed with the Hawaiian Medical Association.

Transgender troops defended by AMA policy and legal action. As President Donald Trump was seeking to ban transgender people from serving in the military, the AMA issued a statement saying “there is no medical valid reason” for such action. The Litigation Center also joined an amicus brief in support of two military veterans seeking to change U.S. Department of Veterans Affairs policy of not covering sex-reassignment surgery for veterans with gender dysphoria.