|The 4th District Court of Appeals has decided that a
contractor could not escape the negligence claims of a "loaned" worker where
worker's compensation premiums were paid to the worker's employer but the money was not
forwarded to the state insurance fund. The case is Slack v Henry LW
On January 4, 2001 HCFA released Phase I of the final regulations
interpreting Stark II, more commonly known as the physician self-referral statute.
Stark I prohibits physicians from referring Medicare benificiaries to any clinical lab in
which the physician or family member has a financial interest. In Stark II this was
expanded to include certain designated health care services including PT and OT services,
radiology services, clinical lab services and home health services. The new
regulations attempt to clarify the scope of the self-referral prohibition by defining
terms such as "referral," "designated health services," and
"financial relationship." Sanctions for violating Stark include civil
monetary penalties, mandatory refunds, denial of Medicare reimbursement and potential
exclusion from the Medicare program so it is imperitive all health care providers become
familiar with the new regulations.
A child injured as a passenger in a motor vehicle accident driven by his mother was
entitled to underinsured motorists coverage under policies issued by his parent's
employers where the uninsured/underinsured motorist provisions in the policies did not
limit coverage to employees acting in the scope of employment decides a common pleas judge
in Congrove v Wausau Insurance Companies LW 113-015-00 issued 1/8/01.
On December 20, 2000 President Clinton released the final privacy regulation under
HIPAA. It is anticipated it will cost the health care industry and employers over
$17.6 billion over the next 10 years to comply with this regulation. Some
highlights from this regulation include:
- Doctors and hospitals will be required to obtain a patient's written consent to use
their health care information for routine purposes such as treatment and payment.
- Health care providers and plans will be required to establish business policies geared
toward protecting patient information to ensure appropriate safeguards are in place to
protect patient information including designation of a "privacy officer."
- This new regulation restricts the information that is used and disclosed to the minimum
amount necessary to comply with requests of employers and other entities.
- Health care providers and plans will be required to inform patients as to how their
information is being used and to whom it is being disclosed.
The Ohio Supreme Court has now ruled that adult emancipated children can recover for
loss of parental consortium. See Rolf v Tri State Motor Transit Co. 91
OhioSt.3d 380. The previous law was that only minor children had this cause of
On May 3, 2001 the Eight District (Cuyahoga County) Court of Common Pleas issued a
ruling that R.C. 3937.182 precludes insuring against punitive damages awarded based on
individual's malicious, willful or intentional conduct. It does not, however, preclude
coverage for statutory punitive damages awarded without any finding of malice, intent or
ill will. Accordingly, they held that R.C. 3927.182 did not preclude coverage for
Corinthian for this claim. See Corinthian v Hartford LW 108-285-01.
On June 28, 2001 the Ohio Supreme Court ruled that Ohio Revised Code
4123.931, which permits the Bureau of Workers' Compensation and self-insured employers to
assert subrogation claims against judgments or settlements obtained by injured workers,
violates the Ohio Constitution's guarantee of a remedy for injury and prohibition against
the taking of private property without just compensation (decision answers certified
questions from the U.S. District Court for the Northern District of Ohio).
- Holeton v. Crouse Cartage Co.
(Lawyers Weekly No. 100-211-01
On July 9th the Eight District Court of Appeals held a grocery store shopper who
tripped over a metal rail could maintain a negligence claim even though the hazard may
have been open and obvious. This could significantly alter the landscape of premises
liability litigation in Ohio making it much harder to get summary judgment.
In a claim involving the Nursing Home Patients' Bill of Rights, ORC Ch. 3721, an action
was brought against unlicensed assisted-living facility's owner and operator and
resident's personal physician arising out of alleged failure to provide resident adequate
and appropriate medical treatment and nursing care. Trial court erred in granting summary
judgment to operator and owner on basis that facility was not a "home" under ORC
§3721.01(A)(1)(a) because definition of "home" applies to unlicensed as well as
licensed facilities. Also, while director of health has enforcement and licensing
authority, he does not have exclusive jurisdiction to determine if a facility is a
"home" for purposes of this statute. Trial court did not err in granting summary
judgment for personal physician since ORC §3721.17(I) does not create a resident's cause
of action for a violation by a personal physician. See Peskin v Seasons Health Care
141 Ohio App3d 436.
The Ohio Legislature has been contemplating HB 412 which is working it way through
committee. It currently stands as of March 11, 2002:
NURSING CARE LIABILITY (Seitz) Relative to the results of a home inspection or
nursing facility survey, liability of a residential care facility or a home for employee
actions, liability of a residential care facility or a home for punitive damages, and
expansion of the definition of medical claim in the state of limitations.
bill was reported by a 6-1 vote of members present; Rep. Joyce Beatty (D-Columbus) cast
the dissenting vote. Six amendments, as follows, were adopted:
a spouse, parent or an adult child to bring a claim on behalf of a resident in a nursing
that no provision of the bill applies to workers compensation proceedings (Seitz);
that when a claim is filed, the Ohio Department of Job and Family Services receives
notification (Seitz). Mr. Seitz explained that the amendment seeks to preserve the
departments subrogation rights.
a severability claims to the uncodified section of the bill (Seitz).
that any government agency can use state and federal surveys and inspection reports in
enforcement proceedings (Seitz).
language regarding the use as evidence the care and treatment provided to other home
residents by a plaintiffs attorney to help support a claim by establishing patterns
of care (Jerse).
committee heard proponent and opponent testimony. Dan Stewart, representing the Service
Employees International Union, said the bill would be unnecessary if the quality of care
was improved at nursing homes, as well as increasing staffing. He also suggested that
there has been a lack of evidence to support claims that increased litigation against
nursing facilities has made insurance more expensive or even inaccessible.
Insufficient care and short staffing turns into poor care, Mr. Stewart said.
He also noted that the protections contained in the bill apply only to nursing facilities.
What other industry would have these protections, he asked. We need to
be looking at better staffing and improving quality but helping the best-performing
homes, he concluded.
Saulitis of Youngstown, representing District 11 Area Agency on Aging, returned to present
the committee with copies of a recent report issued by the General Accounting Office
regarding nursing homes and problems found with homes, although as Sponsor Seitz noted,
none of the homes included in the study were located in Ohio.
Law, representing the Association of Ohio Philanthropic Homes, and Orson Peck,
representing himself, appeared in support. Mr. Law provided information to the committee
regarding the insurance issue in Ohio and noted that some homes have been advised that
accepting multiple-medical needs clients may jeopardize their insurance. He
also pointed out that the bill does not affect any patient rights conferred by current
Ohio law. Lawsuits, he said, should be about a matter of harm to a patient,
not about other factors that may be contained in a survey or inspection report dealing
with subjects unrelated to the alleged harm suffered by a resident. He also provided a
letter from the chair of the Statewide Resident Forum, which represents the interests of
home residents, in support of the bill. Mr. Peck said insofar as possible, problems in
nursing homes should be addressed by legislation and not in the courts; he also
recommended that punitive damages awarded by courts in patient actions should go to
provide funding for Ohios long-term care ombudsman program.