Health Law and Regulation: Case Study

Write a long paragraph for each. There are not necessarily “right” answers as even lawyers disagree on what the actual outcome of a factual scenario would be, but you will be graded in three equal parts on: 1. your ability to recognize legal issues as discussed in the textbook and in class in our course; 2. explaining and expounding on the rules surrounding those issues demonstrating some level of mastery of the material (ELEMENTS ELEMENTS ELEMENTS) 3 general legal reasoning i.e. elements of a cause of action, applying principles we learned discussing three branches of government, recognizing where additional factual questions need to be asked, etc. So, for example, one of these is clearly a HIPAA issue. A simple yes or no answers to the questions is not acceptable. I expect you to explain what HIPAA is, who and or what it governs, how the rules generally work. For each example, assume the person, client or employer who tasked you with this may not be familiar with the subject matter, so you are educating them as well as responding to the questions. You grade will also be based on your organizational skills, writing, logical thought, and presentation.

Health Law and Regulation Final Exam Spring 2021  revised 3-29-21

You will choose three of these hypotheticals to answer in the two hour period.  Make sure you name is on every page of your answer.  Answers are to be typed in word.  You shall upload your answer to the dropbox AND e mail a copy to me.

There are not necessarily “right” answers as even lawyers disagree on what the actual outcome of a factual scenario would be, but you will be graded in three equal parts on: 1. your ability to recognize legal issues as discussed in the textbook and in class in our course; 2.   explaining and expounding on the rules surrounding those issues demonstrating some level of mastery of the material (ELEMENTS ELEMENTS ELEMENTS) 3 general legal reasoning i.e. elements of a cause of action, applying principles we learned discussing three branches of government, recognizing where additional factual questions need to be asked, etc.  So, for example, one of these is clearly a HIPAA issue.  A simple yes or no answers to the questions is not acceptable.  I expect you to explain what HIPAA is, who and or what it governs, how the rules generally work.  For each example, assume the person, client or employer who tasked you with this may not be familiar with the subject matter, so you are educating them as well as responding to the questions.  You grade will also be based on your organizational skills, writing, logical thought, and presentation. 

1. 1.      You’ve recently been employed in the risk management department of a Miami Hospital.  The Risk Manager has e mailed you late one night and wants you to respond to the following fact scenario before she contacts the facilities insurance company.  Dr. Lauderdale is a surgeon in a Miami Hospital. The hospital is on alert because of an oncoming category 4 hurricane. The hospital is monitoring the advance of the hurricane because considering its strength, patients who are too sick to be discharged will have to be moved to a different hospital and surgeries postponed or rescheduled. On this particular day, the hurricane is hours away and the doctor has just entered surgery.  It's unclear whether the weather reports have been erroneous as to the landing of the hurricane, or whether the hospital was late in ordering patients to be transferred. Dr Lauderdale is about halfway through his surgery when the hurricane hits. When the power goes out and high winds break a window, a nurse holding a clamp flinches and the clamp tears an artery. The hospital generators come on, restoring the light, but there is a noise and a wisp of smoke and the machine measuring vital signs goes off.  The surgeon orders one nurse to start measuring vital signs, while he starts repairing the damaged artery.  The amount of bleeding is severe, between the surgery itself and the damaged artery, and internal hospital communications are not working due to the hurricane, so additional blood can't be ordered.  The surgeon sends the other nurse assisting to get more blood.  Being short staffed, dealing with the winds coming from the hurricane, the surgeon takes twice as long to complete the surgery.  The patient, upon being stabilized, is transferred to another facility. He comes down with a surgical site infection, probably from the open window, but no one can be sure.   The window was rated to withstand hurricane force winds of up to 200 miles an hour, but it was improperly installed by a contractor hired by the hospital to fix this particular window when it previously cracked, possibly a product defect.  The patient dies from his infection.  An autopsy ordered by the family discloses cause of death being the infection, exacerbated by loss of blood during the surgery, and the amount of time the surgery took.  They file suit against the hospital, the surgeon, the nurse who damaged the artery, and the contractor who installed the window.  Is the hospital liable for the patient's death?  Discuss the effect of the hurricane, and whether transfers were ordered timely?  Discuss the liability, individually for the nurse?  Is the surgeon liable and if so, how was he negligent or not negligent.  Discuss “proximate cause” and what was the proximate cause of the patient's death.  Who else might be liable and why?

1. 2.      You work for a major teaching and referral hospital that also conducts bio medical research. The Hospital has a division called the University Physician Group under which all physicians who teach at the hospital are members and see patients and bill through this group.  Other doctors who also practice at the hospital but do not teach are employed here as well. 

            Jane Doe and Mary Roe are a same sex couple who have had a domestic partnership for 10 years but have not married. Jane was previously married to a wealthy businessman and has a substantial monthly alimony check which she loses if she remarries.  Jane and Mary come in to see Dr. John, who is a fertility specialist, and also a fertility researcher at the University.

Jane and Mary are ready to start a family.  Jane wants and frozen embryo to be implanted which was fertilized by sperm from her former husband.  These embryos are frozen in separate fertility clinic in which Jane and her former husband signed an agreement specifying that upon termination of their marriage, the embryo’s would belong to Jane.  In their divorce proceeding however, she agreed in the settlement to consent to the destruction of the embryo’s when requested by her former husband.  The husband forgot to follow through and never asked for their destruction. The former husband has caught wind of all this, which was leaked to him by a employee of the hospital, and has threatened to sue the university.

 Dr John in his first meeting with Jane and Mary tells them he formerly worked at the prior facility and thinks he has a conflict, so he wants another physician to treat her.  Jane and Mary really want the same physician and say they are willing to waive any conflict.  Dr John accepts Mary as a patient but asks that Jane at least meet with another doctor.

Mary wants her eggs fertilized with her father’s sperm.  Her father is willing, but her mother thinks it's immoral.  She has threatened to go to the police and demand they pursue this as incest.

            Dr John brings in Dr Frances to meet with both of them to see if she’ll treat Jane, and in the meeting Dr Frances says to Jane and Mary she’s not comfortable participating at all because her religious beliefs prevent her with providing elective medical care for LGBT patients. Jane and Mary files a complaint against both Drs John and Frances with the administration for discrimination.

            Dr John has been doing research on transplanting fetuses under 24 weeks to surrogates where the mother has had at least three prior miscarriages and has a difficult pregnancy.  His research has just been approved for a clinical trial in humans and Dr John has told Mary and Jane about his research and Mary says she’s been told to expect a difficult delivery.   Mary says she willing to participate if her pregnancy jeopardizes the baby, but she doesn't want to be “in the clinical trial”, because they choose your surrogate for you and she wants to use her best friend.  Jane is opposed.   Dr John has suggested that maybe this is ok, since she will already be a “patient”.

The VP of the hospital for operations comes to you and has asked you to do some preliminary research before he talks to the hospitals general counsel about the entire situation so she's more knowledgeable going in. Her questions are: 

what are the issues surrounding the Janes discrimination complaint and is the complaint rightfully filed in regard to the hospital and/or should it be against the Physician(s)?  If the physicians, which one or both?  Does the Physician have a right to refuse treatment on religious grounds?  Can the ex-husband file suit against the university for his objection to the frozen embryo being used?  If not, where does the husband’s remedy lie?

Can Dr John transplant Mary’s embryo without enrolling her in the clinical trial?  If so why and if not, why not?  Does Jane have a right to object to Mary’s plan as her domestic partner?  (Mary is a 17-year-old emancipated minor but in order to agree to the emancipation, Mary's parents insisted Jane file for and be granted guardianship of Mary until she’s 18.  Mary will turn 18 during the pregnancy).

Can Mary’s mother try to have Mary’s father arrested for incest for donating sperm to fertilize Mary’s embryo?

The SC statute on incest reads as follows:  “Incest.

Any persons who shall have carnal intercourse with each other within the following degrees of relationship, to wit:

(1) A man with his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister; or

(2) A woman with her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother;

Shall be guilty of incest and shall be punished by a fine of not less than five hundred dollars or imprisonment not less than one year in the Penitentiary, or both such fine and imprisonment.”

1. 3.       On August 4, 2011, Donna Zaleskas, a terminal cancer patient receiving care at Brigham and Women's Hospital (hospital), was experiencing severe pain in her left leg and knee. Her doctor ordered X-rays. Several radiology technologists -- James Connors, Yingbo Zhang, Carlo Valentin, Rade Boskovic, and Ahmed Mohammed (collectively, the technologists) -- participated in the X-ray exam. Connors, the lead technologist, told Donna's sister, Kara, and her mother, Margaret, that if Donna experienced too much pain, he would stop.

Connors denied Kara's request to remain in the X-ray room during the exam, but Kara and Margaret remained just outside. It is undisputed that Connors informed Kara and Margaret that he had ended the exam early -- after five X-ray images, instead of the six the doctor ordered. The judge recited that “Donna's x-rays were in fact stopped prior to completion.” However, in the light most favorable to the plaintiffs, the technologists took all six X-rays ordered.

 Indeed, the defendants argued in response to the plaintiffs' motion for summary judgment that “[a] genuine issue of material fact exists regarding whether the x-rays were timely terminated.” *2 As we discuss infra, an open question exists whether there is additional admissible evidence of what happened during the X-ray exam. At a deposition taken on March 30, 2017, over five years after the day in question, Kara testified about her observations of Donna's symptoms of pain and hearing Donna pleading and begging during the X-ray exam but stated that she was “not sure whether [Donna] ever said ‘stop.’ ” Similarly, Margaret, at her deposition over five years later, could not recall if she heard Donna say, “stop.” However, the record includes three documents that may be admissible to prove that Donna asked the technologists to stop, provided the required evidentiary foundation is laid. First, as soon as Kara returned home from the hospital after the X-ray exam, in the early morning hours of August 5, 2011, she wrote a summary of the events in question and e-mailed that summary to her mother and other sister (August 5 email summary or summary). In that summary, Kara stated that she and her mother heard “Donna's plaintive pleading -- ‘please, please, please, please, please, please ...,’ ” and that “Donna continued to wail and beg for them to stop” and that ten minutes later, the X-rays were done. Kara adopted this summary, swearing to it, in a declaration dated April 8, 2015, which was before the date of the deposition. The second document is the hospital's redacted patient family relations report (family relations report). On August 5, 2011, the day after the X-rays were taken, the plaintiffs reported their concerns about the X-ray exam to hospital staff.

 The family relations report, written by Stacey Bukuras, the person who investigated the plaintiffs' concerns, documented that Kara and Margaret reported that after the door to the Xray room closed, “for the following 20 minutes, they heard [Donna] ‘wailing,’ ‘begging to “please stop.” ’ ” The third document is Kara's contemporaneous handwritten notes (Kara's notes) of a call with Bukuras. Kara's notes stated that nursing director Eileen Molina “acknowledged that [Donna] asked to stop” and the “exam could've been stopped.” Kara's notes also reflected that the technologists “cut [the Xray exam] short -- not as short as it should've been.” Connors recalled Donna's X-ray exam and responded in discovery that “at no point did she request that the x-ray be stopped.” He also testified that “[i]t is never reasonable or appropriate to continue an X-ray procedure after a patient has indicated that [they] wish the technician to stop.” In their opposition to the plaintiffs' motion for summary judgment, the defendants stated that the “technologists [also] testified that it is their custom and practice to stop an X-ray if a patient asks them to stop.” The defendants also acknowledged in their opposition that whether Donna withdrew her consent was a material dispute of fact.

Can Donna and or her estate sue the Doctors and the hospital for battery for continuing treatment after she said “Stop”.  Discuss the nature of the cause of action of battery and whether the liability of the doctor or the hospital would be any different