Category Archives: health care

First Circuit rules that recovering addict entitled to Disability benefits

In Colby v. Union Security Insurance Company & Management Company for Merrimack Anesthesia Associates Long Term Disability Plan, et al., the First Circuit Court of Appeals created a circuit-split in ruling that a recovering addict can get LTD benefits.

The Court held that “a risk of relapse into substance dependence — like a risk of relapse into cardiac distress or a risk of relapse into orthopedic complications — can swell to so significant a level as to constitute a current disability.”

The opinion, written by Judge Bruce M. Selya, is available here.

SCOTUS, with Chief Justice Roberts, Upholds Health Care Law

With a vote of 5-4, the Supreme Court of the United States has upheld the Health Care Reform legislation with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.  Read the opinion here.

While Justice Anthony Kennedy was thought to be the swing vote, he ultimately dissented and Chief Justice John Roberts’ vote ultimately saved the historic legislation.

Here is a summary:

  • Justices Kennedy, Scalia, Alito and Thomas voted that the entire Act was unconstitutional.
  • Justices Ginsburg, Kagan, Sotomayor and Breyer voted to uphold the Act as constitutional.
  • Chief Justice Roberts forged a middle ground stating that the Act was constitutional under Congress’ power to tax, but unconstitutional under the Commerce Clause.  However, the Act is ultimately constitutional because of the former.

Regarding the Medicaid issue, CJ Roberts notes that “[n]othing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

Having upheld the individual mandate, the Court does not reach severability issues.

The SCOTUSblog summarizes as follows:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Play dealing with Marriage Equality and Medical Malpractice debuts at Trinity Rep

Love Alonea timely play, debuts this week at Trinity Rep on March 16th and runs through May 27, 2012.  Check the play out on Facebook here.

The play deals head-on with marriage equality and medical malpractice by telling a fictional story of what happens when a routine procedure goes tragically wrong. In light of Rhode Island’s 2010 civil union bill and the current bill before the House to allow doctors to say “I’m sorry” for medical negligence, Love Alone couldn’t be more relevant.

Internationally awarded playwright Deborah Salem Smith is the author of Love Alone and the playwright-in-residence at Trinity Repertory Company in Providence. She has a personal connection to the subject matter in that her partner of 14 years is a doctor and her father-in-law is an attorney who represents patients and hospitals in medical malpractice lawsuits.
Love Alone was among 19 plays in the nation to be awarded a prestigious Edgerton Foundation New American Play Award and received an honorable mention from the Jane Chambers Award, the country’s premier women’s playwriting award. Recognized for its exploration of the complex human emotions experienced by those involved in medical error, Love Alone paints a loving portrait about how we grieve and how we heal.
Smith’s previous honors include an Emerging American Artist Fulbright for playwriting in Dublin, Ireland, where she worked with the Abbey Theatre, Ireland’s national theatre. Smith’s work has been recognized by a National Mellon Fellowship in the Humanities, a MacDowell Fellowship, a Colby Fellowship, a Major Hopwood Award, as well as writing and visual arts prizes from the University of Michigan and Princeton University. Her previous plays, which have been deemed “luminous, intelligent, provocative and deeply moving,” by The Boston Globe, include Boots on the Ground, Some Things Are Private, Good Business, and Caviar.

Conservative Federal Judge Deems Portion of Health Care Law Unconstitutional

After two federal judges had deemed the new Health Care law constitutional, a Virginia federal judge appointed by George W. Bush has deemed it’s “individual mandate” provision unconstitutional.  The New York Times has the story:

A federal judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first judge to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

The judge, Henry E. Hudson of Federal District Court in Richmond, said the law’s requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause.


In a 42-page opinion, Judge Hudson wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Allowing Congress to exert such authority, he said, “would invite unbridled exercise of federal police powers.”

Compelling vehicle owners to carry accident insurance, as states do, is considered a different matter because the Constitution gives the states broad police powers that have been interpreted to encompass that. Furthermore, there is no statutory requirement that people possess cars, only a requirement that they have insurance as a condition of doing so. By contrast, the plaintiffs in the health care case argue that the new law requires people to obtain health insurance simply because they exist.

The insurance mandate is central to the law’s mission of covering more than 30 million people who are uninsured. Insurers argue that only by requiring healthy people to have policies can they afford to pay for those with expensive conditions. But Judge Hudson ruled that many of the law’s other provisions could be severed legally and would survive even if the mandate is invalidated.

Judge Hudson is the third district court judge to reach a determination on the merits in one of the two dozen lawsuits challenging the health care law. The other judges, in Detroit and Lynchburg, Va., have upheld the law. Lawyers say the appellate process could last another two years before the Supreme Court settles the dispute.

The opinion by Judge Hudson, who has a long history in Republican politics in Northern Virginia, continued a partisan pattern in the health care cases. Thus far, judges appointed by Republican presidents have ruled consistently against the Obama administration, while Democratic appointees have found for it.

At least $1.5 Million awarded in Federal Vaccine Case

CBS News reports that the first court award in a vaccine-autism claim is a big one: the family of Hannah Poling will receive more than $1.5 million dollars for her life care; lost earnings; and pain and suffering for the first year alone.

In addition to the first year, the family will receive more than $500,000 per year to pay for Hannah’s care. Those familiar with the case believe the compensation could easily amount to $20 million over the child’s lifetime.

Hannah was described as normal, happy and precocious in her first 18 months.

Then, in July 2000, she was vaccinated against nine diseases in one doctor’s visit: measles, mumps, rubella, polio, varicella, diphtheria, pertussis, tetanus, and Haemophilus influenzae.

Afterward, her health declined rapidly. She developed high fevers, stopped eating, didn’t respond when spoken to, began showing signs of autism, and began having screaming fits. In 2002, Hannah’s parents filed an autism claim in federal vaccine court. Five years later, the government settled the case before trial and had it sealed. It’s taken more than two years for both sides to agree on how much Hannah will be compensated for her injuries.

Read Sharyl Attkisson’s 2008 report on Hannah Poling

In acknowledging Hannah’s injuries, the government said vaccines aggravated an unknown mitochondrial disorder Hannah had which didn’t “cause” her autism, but “resulted” in it. It’s unknown how many other children have similar undiagnosed mitochondrial disorder. All other autism “test cases” have been defeated at trial. Approximately 4,800 are awaiting disposition in federal vaccine court.

Time Magazine summed up the relevance of the Poling case in 2008: …(T)here’s no denying that the court’s decision to award damages to the Poling family puts a chink — a question mark — in what had been an unqualified defense of vaccine safety with regard to autism. If Hannah Poling had an underlying condition that made her vulnerable to being harmed by vaccines, it stands to reason that other children might also have such vulnerabilities.”

Then-director of the Centers for Disease Control Julie Gerberding (who is now President of Merck Vaccines) stated: “The government has made absolutely no statement indicating that vaccines are a cause of autism. This does not represent anything other than a very specific situation and a very sad situation as far as the family of the affected child.”

Read the newly-released decision on Hannah Poling’s compensation.

Study Says Medical Errors Cost Nearly $20 Billion Every Year

The Wall Street Journal “Health Blog” reported on a study released Monday by the Society of Actuaries which states that medical errors cost the US $19.5 billion in 2008.  The costs include both medical costs and those linked to lost productivity.  The Hill reports that the dollar figure cited is “likely low,” according to consultants at Milliman, “who crunched the data.” Jonathan Shreve, an actuary for Milliman who co-authored the report, said, “We used a conservative methodology and still found 1.5 million measureable medical errors occurred in 2008.”  More than “half of those costs were associated with just five avoidable medical injuries: pressure ulcers; post-op infections; mechanical troubles with devices, implants or grafts; post-laminectomy syndrome; and hemorrhages.”

Skilled Healthcare Group Class Action Yields Largest Verdict of 2010

American Lawyer notes that “On Tuesday, a California state court jury awarded $671 million in damages to a class of plaintiffs who alleged that Skilled Healthcare Group had inadequately staffed its nursing homes. According to data compiled by Bloomberg, this is the largest verdict of 2010.” Class counsel W. Timothy Needham of Janssen, Malloy, Needham, Morrison, Reinholtsen, Crowley & Griego said that “plaintiffs lawyers…first began to consider a class action against Skilled Healthcare after suing the company and its facilities in individual wrongful death cases and learning of widespread violations.”